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As filed with the Securities and Exchange Commission on February 8, 2000.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): FEBRUARY 6, 2000
INTERVU INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-23361 33-0680870
(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
6815 FLANDERS DRIVE, SAN DIEGO CA 92121
(Address of principal executive offices, including zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (858) 623-8400
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This Current Report on Form 8-K is filed by InterVU Inc., a Delaware
corporation (the "Company"), in connection with the matters described herein.
ITEM 5. OTHER EVENTS.
On February 6, 2000, InterVU Inc. (the "Company"), Akamai Technologies,
Inc. ("Akamai") and ALII Merger Corporation, a wholly-owned subsidiary of Akamai
("Merger Sub"), entered into a definitive Agreement and Plan of Merger (the
"Merger Agreement"). Pursuant to the Merger Agreement and subject to the terms
and conditions set forth therein, Merger Sub will be merged with and into the
Company (the "Merger"), with the Company surviving the Merger and becoming a
wholly-owned subsidiary of Akamai. At the effective time of the Merger, all
outstanding shares of the Company's capital stock will be exchanged for shares
of Akamai common stock, and options and warrants to purchase Company capital
stock will be exchanged for an option or warrant, as applicable, to purchase
shares of Akamai common stock and the exercise price and number of shares of
Company capital stock subject to each such Company option or warrant shall be
appropriately adjusted to reflect the exchange ratio. Each share of Company
capital stock will be exchanged for .5957 of a share of Akamai common stock. The
Merger is subject to various conditions, including clearance under the
Hart-Scott-Rodino Antitrust Improvements Act and approval of the Company's
stockholders. The transaction will qualify as a tax-free reorganization and will
be accounted for as a purchase.
The Board of Directors of the Company unanimously approved the Merger
Agreement. In connection with the execution of the Merger Agreement, the Company
and Akamai entered into a Stock Option Agreement, dated as of February 6, 2000
(the "Stock Option Agreement"), pursuant to which the Company granted to Akamai
an option to purchase up to 19.9% of the outstanding shares of Company common
stock, which option is exercisable upon the occurrence of certain events
specified in the Stock Option Agreement. In addition, stockholders of the
Company who beneficially own in the aggregate approximately 26.5% of the
Company's common stock entered into Stockholder Voting Agreements with Akamai
dated as of February 6, 2000, pursuant to which these stockholders have agreed
to vote their shares in favor of the Merger and against a competing proposal.
A copy of the Merger Agreement, the Stock Option Agreement and the form
of the Voting Agreement are included in this report as Exhibit 2.1, 2.2 and 2.3,
respectively. The foregoing description is qualified in its entirety by
reference to the full text of such exhibits. A joint press release announcing
these transactions is attached to this report as Exhibit 99.1.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
<TABLE>
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(c) Exhibits.
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2.1 Agreement and Plan of Merger, dated as of February 6, 2000, by
and among InterVU Inc., Akamai Technologies, Inc. and ALII
Merger Corporation.
2.2 Stock Option Agreement, dated as of February 6, 2000, between
InterVU Inc. and Akamai Technologies, Inc.
2.3 Form of Stockholder Voting Agreement, dated as of February 6,
2000, between Akamai Technologies, Inc. and certain
stockholders.
99.1 Joint Press Release, dated February 7, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: February 8, 2000 InterVU Inc.
By: /s/ KENNETH L. RUGGIERO
----------------------------------------
Kenneth L. Ruggiero
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
<S> <C>
2.1 Agreement and Plan of Merger, dated as of February 6, 2000, by and among
InterVU Inc., Akamai Technologies, Inc. and ALII Merger Corporation.
2.2 Stock Option Agreement, dated as of February 6, 2000, between InterVU
Inc. and Akamai Technologies, Inc.
2.3 Form of Stockholder Voting Agreement, dated as of February 6, 2000,
between Akamai Technologies, Inc. and certain stockholders.
99.1 Joint Press Release, dated February 7, 2000.
</TABLE>
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
AKAMAI TECHNOLOGIES, INC.,
ALII MERGER CORPORATION
AND
INTERVU INC.
DATED AS OF FEBRUARY 6, 2000
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TABLE OF CONTENTS
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Page
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Article 1 TRANSACTIONS AND TERMS OF MERGER ............................. 2
1.1 Merger ......................................................... 2
1.2 Time and Place of Closing ...................................... 2
1.3 Effective Time ................................................. 2
1.4 Restructure of Transaction ..................................... 2
Article 2 TERMS OF MERGER .............................................. 3
2.1 Charter ........................................................ 3
2.2 Bylaws ......................................................... 3
2.3 Directors and Officers ......................................... 3
Article 3 MANNER OF CONVERTING SHARES .................................. 3
3.1 Conversion of Shares ........................................... 3
3.2 Anti-Dilution Provisions ....................................... 4
3.3 Shares Held by Company or Parent ............................... 4
3.4 Dissenting Stockholders ........................................ 4
3.5 Fractional Shares .............................................. 5
3.6 Conversion of Stock Options; Restricted Stock .................. 5
Article 4 EXCHANGE OF SHARES ........................................... 7
4.1 Exchange Procedures ............................................ 7
4.2 Rights of Former Company Stockholders .......................... 8
Article 5 REPRESENTATIONS AND WARRANTIES OF COMPANY .................... 9
5.1 Organization, Standing, and Power .............................. 9
5.2 Authority of Company; No Breach By Agreement ................... 9
5.3 Capital Stock .................................................. 10
5.4 Company Subsidiaries ........................................... 11
5.5 SEC Filings; Financial Statements .............................. 11
5.6 Absence of Undisclosed Liabilities ............................. 12
5.7 Absence of Certain Changes or Events ........................... 12
5.8 Tax Matters .................................................... 12
5.9 Assets ......................................................... 13
5.10 Intellectual Property ........................................ 14
5.11 Environmental Matters ........................................ 15
5.12 Compliance with Laws ......................................... 16
5.13 Labor Relations .............................................. 16
5.14 Employee Benefit Plans ....................................... 17
5.15 Material Contracts ........................................... 18
5.16 Legal Proceedings ............................................ 19
5.17 Statements True and Correct .................................. 19
5.18 Tax and Regulatory Matters ................................... 20
</TABLE>
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<TABLE>
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<S> <C>
5.19 State Takeover Laws .......................................... 20
5.20 Charter Provisions ........................................... 20
5.21 Opinion of Financial Advisor ................................. 20
5.22 Board Recommendation ......................................... 20
Article 6 REPRESENTATIONS AND WARRANTIES OF PARENT ..................... 21
6.1 Organization, Standing, and Power .............................. 21
6.2 Authority; No Breach By Agreement .............................. 21
6.3 Capital Stock .................................................. 22
6.4 SEC Filings; Financial Statements .............................. 22
6.5 Absence of Undisclosed Liabilities ............................. 23
6.6 Absence of Certain Changes or Events ........................... 23
6.7 Tax Matters .................................................... 23
6.8 Intellectual Property .......................................... 24
6.9 Compliance with Laws ........................................... 25
6.10 Employee Benefit Plans ....................................... 25
6.11 Legal Proceedings ............................................ 26
6.12 Statements True and Correct .................................. 27
6.13 Authority of Sub. ............................................ 27
6.14 Tax and Regulatory Matters ................................... 27
Article 7 CONDUCT OF BUSINESS PENDING CONSUMMATION ..................... 28
7.1 Affirmative Covenants of Company ............................... 28
7.2 Negative Covenants of Company .................................. 28
7.3 Covenants of Parent ............................................ 30
7.4 Adverse Changes in Condition ................................... 31
7.5 Reports ........................................................ 31
Article 8 ADDITIONAL AGREEMENTS ........................................ 31
8.1 Registration Statement; Proxy Statement; Stockholder Approval .. 31
8.2 Exchange Listing ............................................... 33
8.3 Antitrust Notification; Consents of Regulatory Authorities ..... 33
8.4 Filings with State Offices ..................................... 34
8.5 Agreement as to Efforts to Consummate .......................... 34
8.6 Investigation and Confidentiality .............................. 35
8.7 Press Releases ................................................. 35
8.8 No Solicitation ................................................ 35
8.9 Tax Treatment .................................................. 36
8.10 State Takeover Laws .......................................... 36
8.11 Charter Provisions ........................................... 36
8.12 Agreement of Affiliates ...................................... 37
8.13 Employee Matters ............................................. 37
8.14 Indemnification .............................................. 37
8.15 Noncompetition Agreements .................................... 38
Article 9 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE ............ 39
9.1 Conditions to Obligations of Each Party ........................ 39
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<TABLE>
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9.2 Conditions to Obligations of Parent ............................ 40
9.3 Conditions to Obligations of Company ........................... 41
Article 10 TERMINATION ................................................. 41
10.1 Termination .................................................. 41
10.2 Effect of Termination ........................................ 42
10.3 Non-Survival of Representations and Covenants ................ 43
Article 11 MISCELLANEOUS ............................................... 43
11.1 Definitions .................................................. 43
11.2 Expenses ..................................................... 53
11.3 Brokers and Finders .......................................... 54
11.4 Entire Agreement ............................................. 54
11.5 Amendments ................................................... 54
11.6 Waivers ...................................................... 55
11.7 Assignment ................................................... 55
11.8 Notices ...................................................... 55
11.9 Governing Law ................................................ 56
11.10 Counterparts ................................................. 56
11.11 Captions; Articles and Sections .............................. 56
11.12 Interpretations .............................................. 57
11.13 Enforcement of Agreement ..................................... 58
11.14 Severability ................................................. 58
</TABLE>
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LIST OF EXHIBITS
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<S> <C>
EXHIBIT NUMBER DESCRIPTION
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1 Form of Stock Option Agreement.
2 Form of Stockholders' Voting Agreement.
3 Form of agreement of affiliates of Company.
4 Form of noncompetition agreement.
</TABLE>
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of February 6, 2000, by and among Akamai Technologies, Inc. ("Parent"),
a Delaware corporation; ALII Merger Corporation ("Sub"), a Delaware corporation;
and InterVU Inc. ("Company"), a Delaware corporation.
PREAMBLE
The respective Boards of Directors of Company, Sub and Parent are of the
opinion that the transactions described herein are in the best interests of the
parties to this Agreement and their respective stockholders. This Agreement
provides for the acquisition of Company by Parent pursuant to the merger of Sub
with and into Company. At the effective time of such merger, the outstanding
shares of the capital stock of Company shall be converted into the right to
receive shares of the common stock of Parent (except as provided herein). As a
result, stockholders of Company shall become stockholders of Parent and Company
shall continue to conduct its business and operations as a wholly owned
subsidiary of Parent. The transactions described in this Agreement are subject
to the approvals of the stockholders of Company, expiration of the required
waiting period under the HSR Act, and the satisfaction of certain other
conditions described in this Agreement.
It is the intention of the parties to this Agreement that the Merger for
federal income tax purposes shall qualify as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code.
Concurrently with the execution and delivery of this Agreement, as a
condition and inducement to Parent's willingness to enter into this Agreement,
Company and Parent are entering into a stock option agreement (the "Stock Option
Agreement"), in substantially the form of Exhibit 1 hereto, pursuant to which
Company is granting to Parent an option to purchase shares of Company Common
Stock.
Concurrently with the execution and delivery of this Agreement, as a
condition and inducement to Parent's willingness to enter into this Agreement,
certain of the holders of the outstanding shares of Company Capital Stock has
executed and delivered to Parent an agreement in substantially the form of
Exhibit 2 (the "Voting Agreements"), pursuant to which they have agreed, among
other things, subject to the terms of such Voting Agreements, to vote the shares
of Company Capital Stock over which such Persons have voting power to approve
and adopt this Agreement.
Certain terms used in this Agreement are defined in Section 11.1.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants, and agreements set forth herein, the parties agree
as follows:
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ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 MERGER
Subject to the terms and conditions of this Agreement, at the Effective
Time, Sub shall be merged with and into Company in accordance with the
provisions of Section 251 of the DGCL and with the effect provided in Sections
259 and 261 of the DGCL (the "Merger"). Company shall be the Surviving
Corporation resulting from the Merger and shall become a wholly owned Subsidiary
of Parent and shall continue to be governed by the Laws of the State of
Delaware. The Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the respective Boards of
Directors of Company, Sub and Parent and by Parent, as the sole stockholder of
Sub.
1.2 TIME AND PLACE OF CLOSING
The closing of the transactions contemplated hereby (the "Closing") will
take place at 9:00 A.M., Boston, Massachusetts time, on the date that the
Effective Time occurs (or the immediately preceding day if the Effective Time is
earlier than 9:00 A.M.), or at such other time as the Parties, acting through
their authorized officers, may mutually agree. The Closing shall be held at such
location as may be mutually agreed upon by the Parties.
1.3 EFFECTIVE TIME
The Merger and other transactions contemplated by this Agreement shall
become effective on the date and at the time the Certificate of Merger
reflecting the Merger shall become effective with the Secretary of State of the
State of Delaware (the "Effective Time"). Subject to the terms and conditions
hereof, unless otherwise mutually agreed upon in writing by the authorized
officers of each Party, the Parties shall use their reasonable efforts to cause
the Effective Time to occur not later than the second business day following the
last to occur of (i) the effective date (including expiration of any applicable
waiting period) of the last required Consent of any Regulatory Authority having
authority over and approving or exempting the Merger, and (ii) the date on which
the stockholders of Company approve this Agreement to the extent such approval
is required by applicable Law.
1.4 RESTRUCTURE OF TRANSACTION
Parent shall have the right to revise the structure of the Merger
contemplated by this Agreement (including providing for the merger of Company
with and into Sub) in order to assure that the Merger for federal income tax
purposes shall qualify as a "reorganization" within the meaning of Section
368(a) of the Internal Revenue Code; provided, that no such revision to the
structure of the Merger shall result in (i) any changes in the amount or type of
the consideration which the holders of shares of Company Capital Stock are
entitled to receive under this Agreement, (ii) changes the intended tax-free
effects of the Merger to Parent, Company or the holders of shares of Company
Capital Stock, (iii) would be materially adverse to the interests of Parent,
Company or holders of shares of Company Capital Stock, or (iv) would
unreasonably impede or delay consummation of the Merger. Parent may exercise
this right of revision by giving written notice to Company in the manner
provided in Section 11.8 which notice shall be
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in the form of an amendment to this Agreement or in the form of an Amended and
Restated Agreement and Plan of Merger.
ARTICLE 2
TERMS OF MERGER
2.1 CHARTER
The Certificate of Incorporation of Company in effect immediately prior
to the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation until duly amended or repealed.
2.2 BYLAWS
The Bylaws of Company in effect immediately prior to the Effective Time
shall be the Bylaws of the Surviving Corporation until duly amended or repealed.
2.3 DIRECTORS AND OFFICERS
The directors of Sub in office immediately prior to the Effective Time,
together with such additional persons as may thereafter be elected, shall serve
as the directors of the Surviving Corporation from and after the Effective Time
in accordance with the Bylaws of the Surviving Corporation. The officers of
Company in office immediately prior to the Effective Time, together with such
additional persons as may thereafter be elected, shall serve as the officers of
the Surviving Corporation from and after the Effective Time in accordance with
the Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES
Subject to the provisions of this Article 3, at the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Company, Sub
or the stockholders of any of the foregoing, the shares of the constituent
corporations shall be converted as follows:
(a) Each share of capital stock of Parent issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding from
and after the Effective Time.
(b) Each share of Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall cease to be outstanding and shall
be converted into one share of common stock of the Surviving Corporation.
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(c) Each share of Company Common Stock (excluding shares held by
any Company Entity or any Parent Entity) issued and outstanding immediately
prior to the Effective Time shall cease to be outstanding and shall be converted
into and exchanged for the right to receive 0.5957 of a share of Parent Common
Stock (the "Common Exchange Ratio").
(d) Each share of Company Series G Stock (excluding shares held
by any Company Entity or any Parent Entity and shares held by stockholders who
perfect, and have not withdrawn or otherwise forfeited at or prior to the
Effective Time, their statutory dissenters' rights as provided in Section 3.4)
issued and outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for the right to receive a
number of shares of Parent Common Stock equal to the number of shares of Company
Common Stock into which such share of Company Series G Stock was convertible
immediately prior to the Effective Time, pursuant to Company's Certificate of
Incorporation as in effect immediately prior to the Effective Time, multiplied
by the Common Exchange Ratio (the "Series G Exchange Ratio").
(e) Each share of Company Series H Stock (excluding shares held
by any Company Entity or any Parent Entity and shares held by stockholders who
perfect, and have not withdrawn or otherwise forfeited at or prior to the
Effective Time, their statutory dissenters' rights as provided in Section 3.4)
issued and outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for the right to receive a
number of shares of Parent Common Stock equal to the number of shares of Company
Common Stock into which such share of Company Series H Stock was convertible
immediately prior to the Effective Time, pursuant to Company's Certificate of
Incorporation as in effect immediately prior to the Effective Time, multiplied
by the Common Exchange Ratio (the "Series H Exchange Ratio").
3.2 ANTI-DILUTION PROVISIONS
In the event Parent changes the number of shares of Parent Common Stock
issued and outstanding prior to the Effective Time as a result of a stock split,
stock dividend, or similar recapitalization with respect to such stock and the
record date therefor (in the case of a stock dividend) or the effective date
thereof (in the case of a stock split or similar recapitalization for which a
record date is not established) shall be prior to the Effective Time, the
Exchange Ratios shall be proportionately adjusted.
3.3 SHARES HELD BY COMPANY OR PARENT
Each of the shares of Company Capital Stock held by any Company Entity or
by any Parent Entity shall be canceled and retired at the Effective Time and no
consideration shall be issued in exchange therefor.
3.4 DISSENTING STOCKHOLDERS
Any holder of shares of Company Series G Stock or Company Series H Stock
who perfects, and has not withdrawn or otherwise forfeited at or prior to the
Effective Time, such holder's dissenters' rights in accordance with and as
contemplated by Section 262 of the DGCL (a "Dissenting Stockholder") shall be
entitled to receive the value of such shares in cash as
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determined pursuant to such provision of Law; provided, that no such payment
shall be made to any Dissenting Stockholder unless and until such Dissenting
Stockholder has complied with the applicable provisions of the DGCL and
surrendered to Company the certificate or certificates representing the shares
for which payment is being made. In the event that after the Effective Time a
Dissenting Stockholder of Company fails to perfect, or effectively withdraws or
loses, his right to appraisal and of payment for his shares, Parent shall issue
and deliver the consideration to which such holder of shares of Company Series G
Stock or Company Series H Stock is entitled under this Article 3 (without
interest) upon surrender by such holder of the certificate or certificates
representing shares of Company Common Stock held by him. If and to the extent
required by applicable Law, Company will establish (or cause to be established)
an escrow account with an amount sufficient to satisfy the maximum aggregate
payment that may be required to be paid to dissenting stockholders. Upon
satisfaction of all claims of Dissenting Stockholders, the remaining escrowed
amount, reduced by payment of the fees and expenses of the escrow agent, will be
returned to the Surviving Corporation.
3.5 FRACTIONAL SHARES
Notwithstanding any other provision of this Agreement, each holder of
shares of Company Capital Stock exchanged pursuant to the Merger who would
otherwise have been entitled to receive a fraction of a share of Parent Common
Stock (after taking into account all Certificates delivered by such holder)
shall receive, in lieu thereof, cash (without interest) in an amount equal to
such fractional part of a share of Parent Common Stock multiplied by the last
sale price of such common stock on the Nasdaq National Market (as reported by
The Wall Street Journal or, if not reported thereby, any other authoritative
source selected by Parent) on the last trading day preceding the Effective Time.
No such holder will be entitled to dividends, voting rights, or any other rights
as a stockholder in respect of any fractional shares.
3.6 CONVERSION OF STOCK OPTIONS; RESTRICTED STOCK
(a) At the Effective Time, each option, warrant or other Equity
Right to purchase shares of Company Common Stock ("Company Equity Rights")
granted by Company, which are outstanding at the Effective Time, whether or not
exercisable, shall be converted into and become Equity Rights with respect to
Parent Common Stock, and Parent shall assume each Company Equity Right, in
accordance with the terms of the Company Stock Plan, as applicable, and Contract
by which it is evidenced, except that from and after the Effective Time, (i)
Parent and its Compensation Committee shall be substituted for Company and the
Committee of Company's Board of Directors (including, if applicable, the entire
Board of Directors of Company) administering such Company Stock Plan, (ii) each
Company Equity Right assumed by Parent may be exercised solely for shares of
Parent Common Stock (or cash, if so provided under the terms of such Company
Equity Right), (iii) the number of shares of Parent Common Stock subject to such
Company Equity Right shall be equal to the number of shares of Company Common
Stock subject to such Company Equity Right immediately prior to the Effective
Time multiplied by the Common Exchange Ratio, and (iv) the per share exercise
price under each such Company Equity Right shall be adjusted by dividing the per
share exercise price under each such Company Equity Right by the Common Exchange
Ratio and rounding up to the nearest cent. Notwithstanding the provisions of
clause (iii) of the preceding sentence, Parent shall not be obligated to issue
any fraction of a share of Parent Common Stock upon exercise of Company
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Equity Right and any fraction of a share of Parent Common Stock that otherwise
would be subject to a converted Company Equity Right shall represent the right
to receive a cash payment upon exercise of such converted Company Equity Right
equal to the product of such fraction and the difference between the market
value of one share of Parent Common Stock at the time of exercise of such Equity
Right and the per share exercise price of such Equity Right. The market value of
one share of Parent Common Stock at the time of exercise of an Equity Right
shall be the last sale price of such common stock on the Nasdaq National Market
(as reported by The Wall Street Journal or, if not reported thereby, any other
authoritative source selected by Parent) on the last trading day preceding the
date of exercise. In addition, notwithstanding the provisions of clauses (iii)
and (iv) of the first sentence of this Section 3.6, each Company Equity Right
which is an "incentive stock option" shall be adjusted as required by Section
424 of the Internal Revenue Code, and the regulations promulgated thereunder, so
as not to constitute a modification, extension or renewal of the Equity Right,
within the meaning of Section 424(h) of the Internal Revenue Code.
(b) As soon as practicable after the Effective Time, Parent shall
deliver to the participants in each Company Stock Plan an appropriate notice
setting forth such participant's rights pursuant thereto and the grants subject
to such Company Stock Plan shall continue in effect on the same terms and
conditions (subject to the adjustments required by Section 3.6(a) after giving
effect to the Merger), and Parent shall comply with the terms of each Company
Stock Plan to ensure, to the extent required by, and subject to the provisions
of, such Company Stock Plan, that Company Equity Rights which qualified as
incentive stock options prior to the Effective Time continue to qualify as
incentive stock options after the Effective Time. At or prior to the Effective
Time, Parent shall take all corporate action necessary to reserve for issuance
sufficient shares of Parent Common Stock for delivery upon exercise of Company
Equity Rights assumed by it in accordance with this Section 3.6. As soon as
practicable after the Effective Time, but not later than 30 days after the
Effective Time, Parent shall file a registration statement on Form S-3 or Form
S-8, as the case may be (or any successor or other appropriate forms), with
respect to the shares of Parent Common Stock subject to such options and shall
use its reasonable efforts to maintain the effectiveness of such registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such Equity Rights remain outstanding. The
Board of Directors of Parent shall, to the extent permitted by applicable Law,
take or cause to be taken all actions necessary to obtain approval in the form
required by Rule 16b-3 under the Exchange Act so that, with respect to persons
who will or may become officers or directors of Parent, the transactions
relating to the Merger that may be considered acquisitions under such rule for
such persons will be exempt from Section 16 of the Exchange Act.
(c) All contractual restrictions or limitations on transfer with
respect to Company Common Stock awarded under the Company Stock Plans or any
other plan, program, Contract or arrangement of any Company Entity, to the
extent that such restrictions or limitations shall not have already lapsed
(whether as a result of the Merger or otherwise), and except as otherwise
expressly provided in such plan, program, Contract or arrangement, shall remain
in full force and effect with respect to shares of Parent Common Stock into
which such restricted stock is converted pursuant to Section 3.1.
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(d) The Compensation Committee of Company's Board of Directors
shall take all necessary action under Section 14 of Company's Employee Qualified
Stock Purchase Plan ("ESPP") to provide that the offering period thereunder that
commenced on February 1, 2000 shall terminate on the earlier of (i) July 31,
2000 or (ii) the last trading date prior to the Effective Time, and to cause
shares of Company Common Stock to be purchased and allocated to participants
with respect to such offering period prior to the Effective Time. Company's
Board of Directors shall take all necessary action under Section 16 of the ESPP
to terminate the ESPP as of the end of the offering period that commenced on
February 1, 2000.
ARTICLE 4
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES
(a) Promptly after the Effective Time, Parent shall make
available to Parent's transfer agent or another exchange agent selected by
Parent (the "Exchange Agent") for exchange in accordance with this Section 4.1
the shares of Parent Common Stock issuable pursuant to this Agreement and cash
in an amount sufficient to permit payment of cash in lieu of fractional shares
pursuant to Section 3.5. Promptly after the Effective Time, Parent and Company
shall cause the Exchange Agent to mail to each holder of record of a certificate
or certificates which represented shares of Company Capital Stock immediately
prior to the Effective Time (the "Certificates") appropriate transmittal
materials and instructions (which shall specify that delivery shall be effected,
and risk of loss and title to such Certificates shall pass, only upon proper
delivery of such Certificates to the Exchange Agent). The Certificate or
Certificates so delivered shall be duly endorsed as the Exchange Agent may
require. In the event of a transfer of ownership of shares of Company Capital
Stock represented by Certificates that are not registered in the transfer
records of Company, the consideration provided in Section 3.1 may be issued to a
transferee if the Certificates representing such shares are delivered to the
Exchange Agent, accompanied by all documents required to evidence such transfer
and by evidence satisfactory to the Exchange Agent that any applicable stock
transfer taxes have been paid. If any Certificate shall have been lost, stolen,
mislaid or destroyed, upon receipt of (i) an affidavit of that fact from the
holder claiming such Certificate to be lost, mislaid, stolen or destroyed, (ii)
such bond, security or indemnity as Parent and the Exchange Agent may reasonably
require and (iii) any other documents necessary to evidence and effect the bona
fide exchange thereof, the Exchange Agent shall issue to such holder the
consideration into which the shares represented by such lost, stolen, mislaid or
destroyed Certificate shall have been converted. The Exchange Agent may
establish such other reasonable and customary rules and procedures in connection
with its duties as it may deem appropriate.
(b) After the Effective Time, each holder of shares of Company
Capital Stock (other than shares to be canceled pursuant to Section 3.3 or
shares of Company Series G Stock or Company Series H Stock as to which statutory
dissenters' rights have been perfected as provided in Section 3.4) issued and
outstanding at the Effective Time shall surrender the Certificate or
Certificates representing such shares to the Exchange Agent and shall promptly
upon surrender thereof receive in exchange therefor the consideration provided
in Section 3.1, together with all
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undelivered dividends or distributions in respect of such shares (without
interest thereon) pursuant to Section 4.2. To the extent required by Section
3.5, each holder of shares of Company Capital Stock issued and outstanding at
the Effective Time also shall receive, upon surrender of the Certificate or
Certificates, cash in lieu of any fractional share of Parent Common Stock to
which such holder may be otherwise entitled (without interest). Parent shall not
be obligated to deliver the consideration to which any former holder of Company
Capital Stock is entitled as a result of the Merger until such holder surrenders
such holder's Certificate or Certificates for exchange as provided in this
Section 4.1.
(c) Each of Parent, the Surviving Corporation and the Exchange
Agent shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of Company Capital
Stock such amounts, if any, as it is required to deduct and withhold with
respect to the making of such payment under the Internal Revenue Code or any
provision of state, local or foreign Tax Law. To the extent that any amounts are
so withheld by Parent, the Surviving Corporation or the Exchange Agent, as the
case may be, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the shares of Company Capital
Stock in respect of which such deduction and withholding was made by Parent, the
Surviving Corporation or the Exchange Agent, as the case may be.
(d) Any other provision of this Agreement notwithstanding,
neither Parent, the Surviving Corporation nor the Exchange Agent shall be liable
to a holder of Company Capital Stock for any amounts paid or property delivered
in good faith to a public official pursuant to any applicable abandoned
property, escheat or similar Law.
4.2 RIGHTS OF FORMER COMPANY STOCKHOLDERS
(a) At the Effective Time, the stock transfer books of Company
shall be closed as to holders of Company Capital Stock immediately prior to the
Effective Time and no transfer of Company Capital Stock by any such holder shall
thereafter be made or recognized. Until surrendered for exchange in accordance
with the provisions of Section 4.1, each Certificate theretofore representing
shares of Company Capital Stock (other than shares to be canceled pursuant to
Sections 3.3 and 3.4) shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in Section 3.1 in
exchange therefor, subject, however, to the Surviving Corporation's obligation
to pay any dividends or make any other distributions with a record date prior to
the Effective Time which have been declared or made by Company in respect of
such shares of Company Series G Stock or Company Series H Stock in accordance
with the terms of this Agreement and which remain unpaid at the Effective Time.
(b) To the extent permitted by Law, former stockholders of record
of Company shall be entitled to vote after the Effective Time at any meeting of
Parent stockholders the number of whole shares of Parent Common Stock into which
their respective shares of Company Capital Stock are converted, regardless of
whether such holders have exchanged their Certificates for certificates
representing Parent Common Stock in accordance with the provisions of this
Agreement. Whenever a dividend or other distribution is declared by Parent on
the Parent Common Stock, the record date for which is at or after the Effective
Time, the declaration shall
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include dividends or other distributions on all shares of Parent Common Stock
issuable pursuant to this Agreement, but no dividend or other distribution
payable to the holders of record of Parent Common Stock as of any time
subsequent to the Effective Time shall be delivered to the holder of any
Certificate until such holder surrenders such Certificate for exchange as
provided in Section 4.1. However, upon surrender of such Certificate, both the
Parent Common Stock certificate (together with all such undelivered dividends or
other distributions without interest) and any undelivered dividends and cash
payments payable hereunder (without interest) shall be delivered and paid with
respect to each share represented by such Certificate.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants to Parent as follows, except as
disclosed in the Company Disclosure Memorandum:
5.1 ORGANIZATION, STANDING, AND POWER
Company is a corporation duly organized, validly existing, and in good
standing under the Laws of the State of Delaware, and has the corporate power
and authority to carry on its business as now conducted and to own, lease and
operate its Assets. Company is duly qualified or licensed to transact business
as a foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or conduct
of its business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect. The minute book and other organizational documents for Company
have been made available to Parent for its review and are true and complete in
all material respects as in effect as of the date of this Agreement and
accurately reflect in all material respects all amendments thereto and all
proceedings of the Board of Directors and stockholders thereof.
5.2 AUTHORITY OF COMPANY; NO BREACH BY AGREEMENT
(a) Company has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of Company,
subject to the adoption of this Agreement by a majority of the votes entitled to
be cast by the holders of the outstanding shares of Company Common Stock and
Company Series G Stock, voting together as a single class, which is the only
stockholder vote required for approval of this Agreement and consummation of the
Merger by Company. Subject to such requisite stockholder approval, this
Agreement represents a legal, valid, and binding obligation of Company,
enforceable against Company in accordance with its terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights
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generally and except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by
Company, nor the consummation by Company of the transactions contemplated
hereby, nor compliance by Company with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of Company's Certificate of
Incorporation or Bylaws or the certificate or articles of incorporation or
bylaws of any Company Subsidiary or any resolution adopted by the board of
directors or the stockholders of any Company Entity, or (ii) constitute or
result in a Default under, or require any Consent pursuant to, or result in the
creation of any Lien on any Asset of any Company Entity under, any Contract or
Permit of any Company Entity, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect, or, (iii) subject to receipt of
the requisite Consents referred to in Section 9.1(b) and adoption of this
Agreement by the requisite vote of the holders of Company Capital Stock,
constitute or result in a Default under, or require any Consent pursuant to, any
Law or Order applicable to any Company Entity or any of their respective Assets,
where such Default, or any failure to obtain such Consent, is reasonably likely
to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Other than (i) the adoption of this Agreement by the
requisite vote of the holders of Company Capital Stock, (ii) the filing of the
Certificate of Merger reflecting the Merger with the Secretary of State of the
State of Delaware, (iii) notifications and other filings under the HSR Act, (iv)
the filing by Company of the Proxy Statement with the SEC, (v) the filing by
Parent of the Registration Statement with the SEC and the SEC's declaring
effective the Registration Statement, and (vi) Consents, filings, or
notifications which, if not obtained or made, are not reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect, no notice
to, filing with, or Consent of, any Regulatory Authority or other Person is
necessary for the consummation by Company of the Merger and the other
transactions contemplated in this Agreement.
5.3 CAPITAL STOCK
(a) The authorized capital stock of Company consists of (i)
45,000,000 shares of Company Common Stock, of which 15,590,915 shares are issued
and outstanding as of the date of this Agreement, and (ii) 5,000,000 shares of
Company Preferred Stock, of which 1,280,000 shares of Company Series G Stock and
30,000 shares of Company Series H Stock are issued and outstanding. All of the
issued and outstanding shares of capital stock of Company are duly and validly
issued and outstanding and are fully paid and nonassessable under the DGCL. None
of the outstanding shares of capital stock of Company has been issued in
violation of any preemptive rights of the current or past stockholders of
Company.
(b) Except as set forth in Section 5.3(a) of the Company
Disclosure Memorandum, or as provided in the Stock Option Agreement, there are
no shares of capital stock or other equity securities of Company outstanding and
no outstanding Equity Rights relating to the capital stock of Company.
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5.4 COMPANY SUBSIDIARIES
(a) Company has disclosed in Section 5.4 of the Company
Disclosure Memorandum each of the Company Subsidiaries that is a corporation
(identifying its jurisdiction of incorporation) and each of the Company
Subsidiaries that is a general or limited partnership, limited liability
company, or other non-corporate entity (identifying the Law under which such
entity is organized, each jurisdiction in which it is qualified and/or licensed
to transact business, and the amount and nature of the ownership interest
therein). Each Company Subsidiary is duly organized, validly existing, and (as
to corporations) in good standing under the Laws of the jurisdiction in which it
is incorporated or organized, and has the corporate power and authority
necessary for it to own, lease, and operate its Assets and to carry on its
business as now conducted. Each Company Subsidiary is duly qualified or licensed
to transact business as a foreign corporation in good standing in the States of
the United States and foreign jurisdictions where the character of its Assets or
the nature or conduct of its business requires it to be so qualified or
licensed, except for such jurisdictions in which the failure to be so qualified
or licensed is not reasonably likely to have, individually or in the aggregate,
a Company Material Adverse Effect.
(b) Company or one of its wholly owned Subsidiaries owns all of
the issued and outstanding shares of capital stock (or other equity interests)
of each Company Subsidiary. No capital stock (or other equity interest) of any
Company Subsidiary is or may become required to be issued (other than to another
Company Entity) by reason of any Equity Rights, and there are no Contracts by
which any Company Subsidiary is bound to issue (other than to another Company
Entity) additional shares of its capital stock (or other equity interests) or
Equity Rights or by which any Company Entity is or may be bound to transfer any
shares of the capital stock (or other equity interests) of any Company
Subsidiary (other than to another Company Entity). There are no Contracts
relating to the rights of any Company Entity to vote or to dispose of any shares
of the capital stock (or other equity interests) of any Company Subsidiary. All
of the shares of capital stock (or other equity interests) of each Company
Subsidiary held by a Company Entity are fully paid and nonassessable under the
applicable corporation Law of the jurisdiction in which such Subsidiary is
incorporated or organized and are owned by the Company Entity free and clear of
any Lien.
5.5 SEC FILINGS; FINANCIAL STATEMENTS
(a) Company has timely filed and made available to Parent all SEC
Documents required to be filed by Company since November 19, 1997 (together with
all such SEC Documents so filed, whether or not required to be filed, the
"Company SEC Reports"). The Company SEC Reports (i) at the time filed, complied
in all material respects with the applicable requirements of the Securities Laws
and (ii) did not, at the time they were filed (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such Company SEC Reports or necessary in order to make
the statements in such Company SEC Reports, in light of the circumstances under
which they were made, not misleading. No Company Subsidiary is required to file
any SEC Documents.
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<PAGE> 17
(b) Each of the Company Financial Statements (including, in each
case, any related notes) contained in the Company SEC Reports, including any
Company SEC Reports filed after the date of this Agreement until the Effective
Time, complied as to form in all material respects with the applicable published
rules and regulations of the SEC with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited interim statements, as permitted by Form 10-Q of
the SEC), and fairly presented in all material respects the consolidated
financial position of Company and its Subsidiaries as at the respective dates
and the consolidated results of operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES
Except as disclosed in the Company SEC Reports filed prior to the date of
this Agreement, no Company Entity has any Liabilities required under GAAP to be
set forth on a consolidated balance sheet or in the notes thereto that are
reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect, except for Liabilities (i) which are shown or reserved against
in the consolidated balance sheet of Company as of September 30, 1999, included
in the Company Financial Statements delivered prior to the date of this
Agreement or reflected in the notes thereto, (ii) incurred in the ordinary
course of business consistent with past practices, or (iii) incurred pursuant to
this Agreement.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS
Since September 30, 1999, except as described in Company SEC Reports
filed prior to the date of this Agreement or in Section 5.7 of the Company
Disclosure Memorandum, (i) there have been no events, changes, or occurrences
which have had, or are reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect, and (ii) the Company Entities have
not taken any action, or failed to take any action, prior to the date of this
Agreement, which action or failure, if taken after the date of this Agreement,
would represent or result in a material breach or violation of any of the
covenants and agreements of Company provided in Article 7.
5.8 TAX MATTERS
(a) All Tax Returns required to be filed by or on behalf of any
of the Company Entities have been timely filed or requests for extensions have
been timely filed, granted, and have not expired for periods ended on or before
December 31, 1998, and on or before the date of the most recent fiscal year end
immediately preceding the Effective Time, and all Tax Returns filed are complete
and accurate in all material respects. All Taxes shown on filed Tax Returns have
been paid. There is no audit examination, deficiency, or refund Litigation with
respect to any Taxes, except as reserved against in the Company Financial
Statements delivered prior to the date of this Agreement. All Taxes and other
Liabilities due with respect to completed and settled examinations or concluded
Litigation have been paid. There are no Liens with respect to Taxes upon any of
the Assets of the Company Entities.
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<PAGE> 18
(b) None of the Company Entities has executed an extension or
waiver of any statute of limitations on the assessment or collection of any Tax
due (excluding such statutes that relate to years currently under examination by
the Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
(c) The provision for any Taxes due or to become due for any of
the Company Entities for the period or periods through and including the date of
the respective Company Financial Statements that has been made and is reflected
on such Company Financial Statements is sufficient to cover all such Taxes.
(d) Deferred Taxes of the Company Entities have been provided for
in accordance with GAAP.
(e) None of the Company Entities is a party to any Tax allocation
or sharing agreement and none of the Company Entities has been a member of an
affiliated group filing a consolidated federal income Tax Return (other than a
group the common parent of which was Company) has any Liability for Taxes of any
Person (other than Company and its Subsidiaries) under Treasury Regulation
Section 1.1502-6 (or any similar provision of state, local or foreign Law) as a
transferee or successor or by Contract or otherwise.
(f) Each of the Company Entities is in compliance in all material
respects with, and its records contain all information and documents (including
properly completed IRS Forms W-9) necessary to comply with, all applicable
information reporting and Tax withholding requirements under federal, state, and
local Tax Laws, and such records identify with specificity all accounts subject
to backup withholding under Section 3406 of the Internal Revenue Code.
(g) None of the Company Entities has made any payments, is
obligated to make any payments, or is a party to any Contract that could
obligate it to make any payments that would be disallowed as a deduction under
Section 162(m) of the Internal Revenue Code.
(h) There has not been an ownership change, as defined in
Internal Revenue Code Section 382(g), of the Company Entities that occurred
during or after any taxable period in which the Company Entities incurred a net
operating loss that carries over to any taxable period ending after December 31,
1998.
(i) No Company Entity has or has had in any foreign country a
permanent establishment, as defined in any applicable tax treaty or convention
between the United States and such foreign country.
5.9 ASSETS
(a) The Company Entities have good and marketable title, free and
clear of all Liens, to all of their respective Assets, except for any such Liens
or other defects of title which are not reasonably likely to have, individually
or in the aggregate, a Company Material Adverse Effect.
(b) The accounts receivable of the Company Entities as set forth
on the most recent balance sheet included in the Company Financial Statements
delivered prior to the date of
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this Agreement or arising since the date thereof are valid and genuine and have
arisen solely out of bona fide sales and deliveries of goods, performance of
services and other business transactions in the ordinary course of business.
(c) All Assets which are material to Company's business on a
consolidated basis, held under leases or subleases by any of the Company
Entities, are held under valid Contracts enforceable against Company and, to the
Knowledge of Company, against the other party or parties thereto in accordance
with their respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought), and each such Contract is in full force and effect.
(d) The Company Entities currently maintain insurance that
management believes is reasonable in amounts, scope, and coverage. None of the
Company Entities has received written notice from any insurance carrier that (i)
any policy of insurance will be canceled or that coverage thereunder will be
reduced or eliminated, or (ii) premium costs with respect to such policies of
insurance will be substantially increased. There are presently no claims for
amounts exceeding in any individual case $10,000 pending under such policies of
insurance and no notices of claims in excess of such amounts have been given by
any Company Entity under such policies.
5.10 INTELLECTUAL PROPERTY
(a) Section 5.10(a) of the Company Disclosure Memorandum sets
forth separately all patents and patent applications (domestic and foreign),
trademark registrations and trademark applications (domestic and foreign) and
all copyright registrations of which any Company Entity is the owner,
identifying the subject matter and any related registration. Company has made or
prior to the Closing Date will make available to Parent correct and complete
copies of all such patents, franchises, registrations, applications, licenses,
agreements and authorizations (as amended to date) and all other written
documentation evidencing ownership and prosecution (if applicable) of each such
item.
(b) Except as is not reasonably likely to have, individually or
in the aggregate, a Company Material Adverse Effect, each Company Entity owns or
has a valid license to use all Intellectual Property that is used or proposed to
be used in its business as currently conducted or as proposed to be conducted
("Company Intellectual Property").
(c) To the Knowledge of Company, no Company Entity has infringed
upon or misappropriated any Intellectual Property of any Person, and no Company
Entity has received any unresolved charge, complaint, claim, demand or notice
alleging any such infringement from any Person or misappropriation (including
any claim that a Company Entity must obtain an independent license from any
Person or refrain from using any Intellectual Property rights of any Person).
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<PAGE> 20
(d) The software owned or purported to be owned by each Company
Entity was either (i) developed by employees of one or more Company Entities
within the scope of their employment, (ii) developed by independent contractors
or consultants who have assigned their rights to a Company Entity pursuant to
written agreements, or (iii) otherwise acquired by a Company Entity from another
Person.
(e) All employees and independent contractors and consultants of
each Company Entity who have access to confidential or proprietary information
have executed and delivered to a Company Entity agreements regarding the
protection of the Company Entities' proprietary information and the assignment
to such Company Entity of any Company Intellectual Property arising from
services performed for any Company Entity by such persons.
(f) Each Company Entity has obtained or entered into written
agreements with its employees and with third parties in connection with the
disclosure to or use or appropriation by, employees and third parties, of trade
secret or proprietary information owned by any Company Entity and not otherwise
protected by a patent, a patent application, copyright, trademark, or other
registration or legal scheme. No Company Entity has furnished the source code of
any of its software products to any Person, deposited any such source code in
escrow or otherwise provided access to such source code to any Person.
(g) Each Company Entity has taken reasonable steps with the
intent of ensuring that its products (including existing products and technology
and products and technology currently under development) are, when used in
accordance with associated documentation on a specified platform or platforms,
capable of accurately processing, providing, and receiving date data from, into,
and between the twentieth and twenty-first centuries, including the years 1999
and 2000, and, making leap year calculations, provided that all other
non-Company products (e.g., hardware, software and firmware) used in or in
combination with such products, properly exchange data with such Company
Entity's products.
5.11 ENVIRONMENTAL MATTERS
(a) To the Knowledge of Company, each Company Entity and its
Operating Properties are, and have been, in compliance with all Environmental
Laws.
(b) There is no Litigation pending or, to the Knowledge of
Company, threatened before any court, governmental agency, or authority or other
forum in which any Company Entity has been or, with respect to threatened
Litigation, may be named as a defendant (i) for alleged noncompliance (including
by any predecessor) with any Environmental Law or (ii) relating to the release,
discharge, spillage, or disposal into the environment of any Hazardous Material,
whether or not occurring at, on, under, adjacent to, or affecting (or
potentially affecting) a site owned, leased, or operated by any Company Entity
or any of its Operating Properties, nor is there any reasonable basis for any
Litigation of a type described in this sentence.
(c) To the Knowledge of Company, there is no Litigation pending
or threatened before any court, governmental agency, or authority or other forum
in which any Company Entity's Operating Properties (or any Company Entity in
respect of such Operating
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Property) has been or, with respect to threatened Litigation, may be named as a
defendant (i) for alleged noncompliance (including by any predecessor) with any
Environmental Law or (ii) relating to the release, discharge, spillage, or
disposal into the environment of any Hazardous Material, whether or not
occurring at, on, under, adjacent to, or affecting (or potentially affecting)
any of the Company Entities' Operating Properties, nor is there any reasonable
basis for any Litigation of a type described in this sentence.
(d) To the Knowledge of Company, there have been no releases,
discharges, spillages, or disposals of Hazardous Material in, on, under, or
affecting any Operating Property, except such as are not reasonably likely to
have, individually or in the aggregate, a Company Material Adverse Effect.
5.12 COMPLIANCE WITH LAWS
Each Company Entity has in effect all Permits necessary for it to own,
lease, or operate its material Assets and to carry on its business as now
conducted, and there has occurred no Default under any such Permit, other than
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect. None of the Company Entities:
(a) is in Default under any of the provisions of its Certificate
of Incorporation or Bylaws (or other governing instruments);
(b) is in Default under any Laws, Orders, or Permits applicable to
its business or employees conducting its business, except for Defaults
which are not reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect; or
(c) since January 1, 1996, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i) asserting
that any Company Entity is not in compliance with any of the Laws or
Orders which such governmental authority or Regulatory Authority
enforces, (ii) threatening to revoke any Permits, or (iii) requiring any
Company Entity to enter into or consent to the issuance of a cease and
desist order, formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any Board resolution or similar undertaking.
Copies of all material reports, correspondence, notices and other documents
relating to any inspection, audit, monitoring or other form of review or
enforcement action by a Regulatory Authority have been made available to Parent.
5.13 LABOR RELATIONS
No Company Entity is the subject of any Litigation asserting that it or
any other Company Entity has committed an unfair labor practice (within the
meaning of the National Labor Relations Act or comparable state law) or seeking
to compel it or any other Company Entity to bargain with any labor organization
as to wages or conditions of employment, nor is any Company Entity party to any
collective bargaining agreement, nor is there any strike or other labor dispute
involving any Company Entity, pending or threatened, or to the Knowledge of
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Company, is there any activity involving any Company Entity's employees seeking
to certify a collective bargaining unit or engaging in any other organization
activity.
5.14 EMPLOYEE BENEFIT PLANS
(a) Company has disclosed in Section 5.14(a) of the Company
Disclosure Memorandum, and has delivered or made available to Parent prior to
the execution of this Agreement copies in each case of, all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plan, all other written
employee programs, arrangements, or agreements, all medical, vision, dental, or
other health plans, all life insurance plans, and all other employee benefit
plans or fringe benefit plans, including "employee benefit plans" as that term
is defined in Section 3(3) of ERISA, currently adopted, maintained by, sponsored
in whole or in part by, or contributed to by any Company Entity or any entity
which is considered one employer with any Company Entity under Section 4001 of
ERISA or Section 414 of the Internal Revenue Code or Section 302 of ERISA
(whether or not waived) (a "Company ERISA Affiliate") for the benefit of
employees, retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries and under which employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries are eligible to
participate (collectively, the "Company Benefit Plans"). Any of the Company
Benefit Plans which is an "employee pension benefit plan," as that term is
defined in Section 3(2) of ERISA, is referred to herein as a "Company ERISA
Plan." No Company ERISA Plan is also a "defined benefit plan" (as defined in
Section 414(j) of the Internal Revenue Code).
(b) All Company Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other applicable
Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect. Each
Company ERISA Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and Company is not aware of any circumstances likely
to result in revocation of any such favorable determination letter. To the
Knowledge of Company, no Company Entity has engaged in a transaction with
respect to any Company Benefit Plan that, assuming the taxable period of such
transaction expired as of the date hereof, would subject any Company Entity to a
material Tax imposed by either Section 4975 of the Internal Revenue Code or
Section 502(i) of ERISA.
(c) No Company Entity has provided, or is required to provide,
security to any single-employer plan of a Company ERISA Affiliate pursuant to
Section 401(a)(29) of the Internal Revenue Code. Within the six-year period
preceding the Effective Time, no Liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by any Company Entity with respect
to any ongoing, frozen, or terminated single-employer plan or the
single-employer plan of any Company ERISA Affiliate. No Company Entity has
incurred any withdrawal Liability with respect to a multiemployer plan under
Subtitle B of Title IV of ERISA (regardless of whether based on contributions of
a Company ERISA Affiliate). No notice of a "reportable event," within the
meaning of Section 4043 of ERISA for which the 30-day reporting requirement has
not been waived, has been required to be filed by any Company ERISA Affiliate
within the 12-month period ending on the date hereof.
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(d) No Company Entity has any material Liability for retiree
health and life benefits under any of the Company Benefit Plans except to the
extent required by Part VI of Title I of ERISA or applicable state Law and there
are no restrictions on the rights of such Company Entity to amend or terminate
any such retiree health or benefit Plan without incurring any material Liability
thereunder.
(e) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in any
payment for severance or unemployment compensation becoming due to any director
or any employee of any Company Entity from any Company Entity under any Company
Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under
any Company Benefit Plan, or (iii) result in any acceleration of the time of
payment or vesting of any such benefit.
(f) The actuarial present values of all accrued deferred
compensation entitlements (including deferred compensation entitlements under
any executive compensation, supplemental retirement, or employment agreement) of
employees and former employees of any Company Entity and their respective
beneficiaries, other than entitlements accrued pursuant to funded retirement
plans subject to the provisions of Section 412 of the Internal Revenue Code or
Section 302 of ERISA, have been fully reflected on the Company Financial
Statements to the extent required by and in accordance with GAAP.
5.15 MATERIAL CONTRACTS
(a) Company has made or will make available to Parent, for each
of the Company Entities, each (i) consulting Contract providing for aggregate
payments to any Person in any calendar year in excess of $100,000 and each other
employment, severance, termination or retirement Contract, (ii) Contract
relating to the borrowing of money by any Company Entity, exchange-traded or
over-the-counter swap, forward, future, option, cap, floor, or collar, or any
other interest rate or foreign currency protection or other hedging transaction,
including any financial derivative Contract (whether or not reflect on its most
recent balance sheet), any leasing transaction of the type required to be
capitalized in accordance with GAAP in excess of $100,000, or any guarantee,
support, assumption or endorsement of, or any similar commitment with respect
to, the Liabilities of any other Person (other than Contracts evidencing trade
payables and Contracts relating to borrowings or guarantees made in the ordinary
course of business), (iii) Contract which prohibits or restricts any Company
Entity from engaging in any business activities in any geographic area, line of
business or otherwise in competition with any other Person, (iv) Contract
between or among Company Entities, (v) Contract relating to the licensing of
Intellectual Property (other than Contracts entered into in the ordinary course
and "shrink-wrap" software licenses), (vi) Contract relating to the provision of
data processing, network communication, or other technical services to any
Company Entity involving payments by Company Entities in excess of $100,000,
(vii) Contract relating to the purchase or sale of any goods or services (other
than Contracts entered into in the ordinary course of business or involving
payments under any individual Contract not in excess of $100,000), and (viii)
other Contract or amendment thereto that would be required to be filed as an
exhibit to a Form 10-K filed by Company with the SEC as of the date of this
Agreement (together with all Contracts referred to in Sections 5.9 and 5.14(a),
the "Company Contracts").
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(b) With respect to each Company Contract: (i) the Contract is in
full force and effect; (ii) no Company Entity is in Default thereunder, other
than Defaults which are not reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect; (iii) no Company Entity has
repudiated or waived any material provision of any such Contract; and (iv) no
other party to any such Contract is, to the Knowledge of Company, in Default in
any respect, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect, or has
repudiated or waived any material provision thereunder. All of the indebtedness
of any Company Entity for money borrowed is prepayable at any time by such
Company Entity without penalty or premium.
(c) No customer which individually accounted for more than 5% of
Company's consolidated gross revenues during the 12-month period preceding the
date of this Agreement, and no supplier of any Company Entity that accounted for
more than 5% of the Company's consolidated expenditures during the 12-month
period preceding the date of this Agreement has, within the last 12 months,
canceled or otherwise terminated, or made any written threat to any Company
Entity to cancel or otherwise terminate, its relationship with any Company
Entity, or has decreased materially its services or supplies to any Company
Entity in the case of any such supplier, or its usage of the services or
products of any Company Entity in the case of such customer, and to the
Knowledge of Company, no such supplier or customer intends to cancel or
otherwise terminate its relationship with any Company Entity or to decrease
materially its services or supplies to any Company Entity or its usage of the
services or products of any Company Entity, as the case may be, in any manner
that is reasonably likely to have, individually or in the aggregate, a Company
Material Adverse Effect.
5.16 LEGAL PROCEEDINGS
There is no Litigation instituted or pending, or, to the Knowledge of
Company, threatened against any Company Entity, or against any director,
employee or employee benefit plan of any Company Entity, or against any Asset,
interest, or right of any of them, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any Company Entity that is reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect.
5.17 STATEMENTS TRUE AND CORRECT
None of the information supplied or to be supplied by any Company Entity
for inclusion in the Registration Statement to be filed by Parent with the SEC
will, when the Registration Statement becomes effective, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
to make the statements therein not misleading. None of the information supplied
or to be supplied by any Company Entity for inclusion in the Proxy Statement to
be mailed to Company's stockholders in connection with the Stockholders'
Meeting, and any other documents to be filed by a Company Entity with the SEC or
any other Regulatory Authority in connection with the transactions contemplated
hereby, will, at the respective time such documents are filed, and with respect
to the Proxy Statement, when first mailed to the stockholders of Company, be
false or misleading with respect to any material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, in the case of the
Proxy
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Statement or any amendment thereof or supplement thereto, at the time of the
Stockholders' Meeting, be false or misleading with respect to any material fact,
or omit to state any material fact necessary to correct any statement in any
earlier communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that any Company Entity is responsible for
filing with any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all material respects with the
provisions of applicable Law. Notwithstanding the foregoing, Company makes no
representation or warranty with respect to any information supplied by any
Parent Entity which is contained in any of the foregoing documents.
5.18 TAX AND REGULATORY MATTERS
No Company Entity or, to the Knowledge of Company, any Affiliate thereof
has taken or agreed to take any action nor does Company have any Knowledge of
any fact or circumstance relating to the Company Entities that is reasonably
likely to (i) prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code, or (ii) materially
impede or delay receipt of any Consents of Regulatory Authorities referred to in
Section 9.1(b).
5.19 STATE TAKEOVER LAWS
Each Company Entity has taken all necessary action to exempt the
transactions contemplated by this Agreement from, or if necessary to challenge
the validity or applicability of, any applicable "moratorium," "fair price,"
"business combination," "control share," or other anti-takeover Laws, including
Section 203 of the DGCL (collectively, "Takeover Laws").
5.20 CHARTER PROVISIONS
Each Company Entity has taken all action so that the entering into of
this Agreement and the consummation of the Merger and the other transactions
contemplated by this Agreement do not and will not result in the grant of any
rights to any Person under the Certificate of Incorporation or Bylaws of any
Company Entity or restrict or impair the ability of Parent or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a stockholder with
respect to, shares of any Company Entity that may be directly or indirectly
acquired or controlled by them.
5.21 OPINION OF FINANCIAL ADVISOR
Company has received the opinion of Prudential Securities, Inc., dated
the date of this Agreement, to the effect that the Common Exchange Ratio is
fair, from a financial point of view, to the holders of Company Common Stock.
Company will deliver to Parent a signed copy of such opinion promptly after
receipt thereof by Company.
5.22 BOARD RECOMMENDATION
The Board of Directors of Company, at a meeting duly called and held, has
by unanimous vote of those directors present (who constituted all of the
directors then in office) (i) determined that this Agreement and the
transactions contemplated hereby, including the Merger, and the Stock Option
Agreement and the Voting Agreements and the transactions contemplated thereby,
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taken together, are fair to and in the best interests of the holders of Company
Capital Stock and (ii) resolved to recommend that the holders of the shares of
Company Capital Stock adopt this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Company as follows, except as
disclosed in the Parent Disclosure Memorandum:
6.1 ORGANIZATION, STANDING, AND POWER
Parent is a corporation duly organized, validly existing, and in good
standing under the Laws of the State of Delaware, and has the corporate power
and authority to carry on its business as now conducted and to own, lease and
operate its Assets. Parent is duly qualified or licensed to transact business as
a foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or conduct
of its business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Parent Material
Adverse Effect.
6.2 AUTHORITY; NO BREACH BY AGREEMENT
(a) Parent has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of Parent. This
Agreement represents a legal, valid, and binding obligation of Parent,
enforceable against Parent in accordance with its terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought).
(b) Neither the execution and delivery of this Agreement by
Parent, nor the consummation by Parent of the transactions contemplated hereby,
nor compliance by Parent with any of the provisions hereof, will (i) conflict
with or result in a breach of any provision of Parent's Certificate of
Incorporation or Bylaws, or (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of any Parent Entity under, any Contract or Permit of any Parent Entity,
where such Default or Lien, or any failure to obtain such Consent, is reasonably
likely to have, individually or in the aggregate, a Parent Material Adverse
Effect, or, (iii) subject to receipt of the requisite Consents referred to in
Section 9.1(b), constitute or result in a Default under, or require any Consent
pursuant to, any Law or Order applicable to any Parent Entity or any of their
respective Assets, where such
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Default, or any failure to obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a Parent Material Adverse Effect.
(c) Other than (i) the filing of the Certificate of Merger
reflecting the Merger with the Secretary of State of the State of Delaware, (ii)
notifications and other filings under the HSR Act, (iii) the filing of the
Registration Statement with the SEC and the SEC's declaring effective the
Registration Statement, (iv) the filing of the Proxy Statement with the SEC, and
(v) such other filings, authorizations or approvals as may be set forth in
Section 6.2(c) of the Parent Disclosure Memorandum, no notice to, filing with,
or Consent of, any Regulatory Authority or other Person is necessary for the
consummation by Parent of the Merger and the other transactions contemplated in
this Agreement.
6.3 CAPITAL STOCK
(a) The authorized capital stock of Parent consists of (i)
300,000,000 shares of Parent Common Stock, of which 92,833,050 shares are issued
and outstanding as of the date of this Agreement, and (ii) 5,000,000 shares of
Parent Preferred Stock, none of which are issued and outstanding. All of the
issued and outstanding shares of Parent Common Stock are, and all of the shares
of Parent Common Stock to be issued in exchange for shares of Company Capital
Stock upon consummation of the Merger, when issued in accordance with the terms
of this Agreement, will be, duly and validly issued and outstanding and fully
paid and nonassessable under the DGCL. None of the outstanding shares of Parent
Capital Stock has been, and none of the shares of Parent Common Stock to be
issued in exchange for shares of Company Common Stock upon consummation of the
Merger will be, issued in violation of any preemptive rights of the current or
past stockholders of Parent.
(b) Except as set forth in Section 6.3(a), there are no shares of
capital stock or other equity securities of Parent outstanding and no
outstanding Equity Rights relating to the capital stock of Parent.
6.4 SEC FILINGS; FINANCIAL STATEMENTS
(a) Parent has timely filed and made available to Company all SEC
Documents required to be filed by Parent since its inception (together with all
such SEC Documents so filed, whether or not required to be filed, the "Parent
SEC Reports"). The Parent SEC Reports (i) at the time filed, complied in all
material respects with the applicable requirements of the Securities Laws and
(ii) did not, at the time they were filed (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such Parent SEC Reports or necessary in order to make
the statements in such Parent SEC Reports, in light of the circumstances under
which they were made, not misleading. No Parent Subsidiary is required to file
any SEC Documents.
(b) Each of the Parent Financial Statements (including, in each
case, any related notes) contained in the Parent SEC Reports, including any
Parent SEC Reports filed after the date of this Agreement until the Effective
Time, complied as to form in all material respects with the applicable published
rules and regulations of the SEC with respect thereto, was prepared
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in accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited interim statements, as permitted by Form 10-Q of
the SEC), and fairly presented in all material respects the consolidated
financial position of Parent and its Subsidiaries as at the respective dates and
the consolidated results of operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount or effect.
6.5 ABSENCE OF UNDISCLOSED LIABILITIES
Except as disclosed in the Parent SEC Reports filed prior to the date of
this Agreement, no Parent Entity has any Liabilities required under GAAP to be
set forth on a consolidated balance sheet or in the notes thereto that are
reasonably likely to have, individually or in the aggregate, a Parent Material
Adverse Effect, except for Liabilities (i) which are accrued or reserved against
in the consolidated balance sheets of Parent as of September 30, 1999, included
in the Parent Financial Statements delivered prior to the date of this Agreement
or reflected in the notes thereto, (ii) incurred in the ordinary course of
business consistent with past practices, or (iii) incurred pursuant to this
Agreement.
6.6 ABSENCE OF CERTAIN CHANGES OR EVENTS
Since September 30, 1999, except as described in Parent SEC Reports filed
prior to the date of this Agreement, there have been no events, changes or
occurrences which have had, or are reasonably likely to have, individually or in
the aggregate, a Parent Material Adverse Effect.
6.7 TAX MATTERS
(a) All Tax Returns required to be filed by or on behalf of any
of the Parent Entities have been timely filed or requests for extensions have
been timely filed, granted, and have not expired for periods ended on or before
December 31, 1998, and on or before the date of the most recent fiscal year end
immediately preceding the Effective Time, and all Tax Returns filed are complete
and accurate in all material respects. All Taxes shown on filed Tax Returns have
been paid. There is no audit examination, deficiency, or refund Litigation with
respect to any Taxes. All Taxes and other Liabilities due with respect to
completed and settled examinations or concluded Litigation have been paid. There
are no Liens with respect to Taxes upon any of the Assets of the Parent
Entities.
(b) None of the Parent Entities has executed an extension or
waiver of any statute of limitations on the assessment or collection of any Tax
due (excluding such statutes that relate to years currently under examination by
the Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
(c) The provision for any Taxes due or to become due for any of
the Parent Entities for the period or periods through and including the date of
the respective Parent Financial Statements that has been made and is reflected
on such Parent Financial Statements is sufficient to cover all such Taxes.
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(d) Deferred Taxes of the Parent Entities have been provided for
in accordance with GAAP.
6.8 INTELLECTUAL PROPERTY
(a) Except as is not reasonably likely to have, individually or
in the aggregate, a Company Material Adverse Effect, each Parent Entity owns or
has a valid license to use all Intellectual Property that is used or proposed to
be used in its business as currently conducted or as proposed to be conducted
("Parent Intellectual Property").
(b) To the Knowledge of Parent, no Parent Entity has infringed
upon or misappropriated any Intellectual Property of any Person, and no Parent
Entity has received any unresolved charge, complaint, claim, demand or notice
alleging any such infringement from any Person or misappropriation (including
any claim that any Parent Entity must obtain an independent license from any
Person or refrain from using any Intellectual Property rights of any Person).
(c) The software owned or purported to be owned by each Parent
Entity was either (i) developed by employees of one or more Parent Entities
within the scope of their employment, (ii) developed by independent contractors
or consultants who have assigned their rights to a Parent Entity pursuant to
written agreements, or (iii) otherwise acquired by a Parent Entity from another
Person.
(d) All employees and independent contractors and consultants of
each Parent Entity who have access to confidential or proprietary information
have executed and delivered to a Parent Entity agreements regarding the
protection of the Parent Entities' proprietary information and the assignment to
such Parent Entity of any Parent Intellectual Property arising from services
performed for any Parent Entity by such persons.
(e) Each Parent Entity has obtained or entered into written
agreements with its employees and with third parties in connection with the
disclosure to or use or appropriation by, employees and third parties, of trade
secret or proprietary information owned by any Parent Entity and not otherwise
protected by a patent, a patent application, copyright, trademark, or other
registration or legal scheme. No Parent Entity has furnished the source code of
any of its software products to any Person, deposited any such source code in
escrow or otherwise provided access to such source code to any Person.
(f) Each Parent Entity has taken reasonable steps with the intent
of ensuring that its products (including existing products and technology and
products and technology currently under development) are, when used in
accordance with associated documentation on a specified platform or platforms,
capable of accurately processing, providing, and receiving date data from, into,
and between the twentieth and twenty-first centuries, including the years 1999
and 2000, and, making leap year calculations, provided that all other non-Parent
products (e.g., hardware, software and firmware) used in or in combination with
such products, properly exchange data with such Parent Entity's products.
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6.9 COMPLIANCE WITH LAWS
Each Parent Entity has in effect all Permits necessary for it to own,
lease or operate its material Assets and to carry on its business as now
conducted, and there has occurred no Default under any such Permit, other than
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Parent Material Adverse Effect. None of the Parent Entities:
(a) is in Default under its Certificate of Incorporation or
Bylaws (or other governing instruments); or
(b) is in Default under any Laws, Orders or Permits applicable
to its business or employees conducting its business, except for
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Parent Material Adverse Effect; or
(c) since January 1, 1996, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i)
asserting that any Parent Entity is not in compliance with any of the
Laws or Orders which such governmental authority or Regulatory Authority
enforces, (ii) threatening to revoke any Permits, or (iii) requiring any
Parent Entity to enter into or consent to the issuance of a cease and
desist order, formal agreement, directive, commitment or memorandum of
understanding, or to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of its business.
6.10 EMPLOYEE BENEFIT PLANS
(a) All pension, retirement, profit-sharing, deferred
compensation, stock option, employee stock ownership, severance pay, vacation,
bonus, or other incentive plan, all other written employee programs,
arrangements, or agreements, all medical, vision, dental, or other health plans,
all life insurance plans, and all other employee benefit plans or fringe benefit
plans, including "employee benefit plans" as that term is defined in Section
3(3) of ERISA, currently adopted, maintained by, sponsored in whole or in part
by, or contributed to by any Parent Entity or any entity which is considered one
employer with Parent under Section 4001 of ERISA or Section 414 of the Internal
Revenue Code or Section 302 of ERISA (whether or not waived) (a "Parent ERISA
Affiliate") for the benefit of employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries and under which
employees, retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries are eligible to participate is referred to as a "Parent
Benefit Plan". Any of the Parent Benefit Plans which is an "employee pension
benefit plan," as that term is defined in Section 3(2) of ERISA, is referred to
herein as a "Parent ERISA Plan." No Parent ERISA Plan is also a "defined benefit
plan" (as defined in Section 414(j) of the Internal Revenue Code).
(b) All Parent Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other applicable
Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a Parent Material Adverse Effect. Each Parent
ERISA Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and Parent is not aware of any circumstances likely to
result in revocation of any such
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favorable determination letter. To the Knowledge of Parent, no Parent Entity has
engaged in a transaction with respect to any Parent Benefit Plan that, assuming
the taxable period of such transaction expired as of the date hereof, would
subject any Parent Entity to a material Tax imposed by either Section 4975 of
the Internal Revenue Code or Section 502(i) of ERISA.
(c) No Parent Entity has provided, or is required to provide,
security to any single-employer plan of a Parent ERISA Affiliate pursuant to
Section 401(a)(29) of the Internal Revenue Code. Within the six-year period
preceding the Effective Time, no Liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by any Parent Entity with respect
to any ongoing, frozen, or terminated single-employer plan or the
single-employer plan of any Parent ERISA Affiliate. No Parent Entity has
incurred any withdrawal Liability with respect to a multiemployer plan under
Subtitle B of Title IV of ERISA (regardless of whether based on contributions of
a Parent ERISA Affiliate). No notice of a "reportable event," within the meaning
of Section 4043 of ERISA for which the 30-day reporting requirement has not been
waived, has been required to be filed by any Parent ERISA Affiliate within the
12-month period ending on the date hereof.
(d) No Parent Entity has any material Liability for retiree
health and life benefits under any of the Parent Benefit Plans except to the
extent required by Part VI of Title I of ERISA and there are no restrictions on
the rights of such Parent Entity to amend or terminate any such retiree health
or benefit Plan without incurring any material Liability thereunder.
(e) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in any
payment (including severance, unemployment compensation, golden parachute, or
otherwise) becoming due to any director or any employee of any Parent Entity
from any Parent Entity under any Parent Benefit Plan or otherwise, (ii) increase
any benefits otherwise payable under any Parent Benefit Plan, or (iii) result in
any acceleration of the time of payment or vesting of any such benefit.
(f) The actuarial present values of all accrued deferred
compensation entitlements (including deferred compensation entitlements under
any executive compensation, supplemental retirement, or employment agreement) of
employees and former employees of any Parent Entity and their respective
beneficiaries, other than entitlements accrued pursuant to funded retirement
plans subject to the provisions of Section 412 of the Internal Revenue Code or
Section 302 of ERISA, have been fully reflected on the Parent Financial
Statements to the extent required by and in accordance with GAAP.
6.11 LEGAL PROCEEDINGS
There is no Litigation instituted or pending, or, to the Knowledge of
Parent, threatened against any Parent Entity, or against any director, employee
or employee benefit plan of any Parent Entity, or against any Asset, interest,
or right of any of them, nor are there any Orders of any Regulatory Authorities,
other governmental authorities, or arbitrators outstanding against any Parent
Entity that is reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect.
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6.12 STATEMENTS TRUE AND CORRECT
None of the information supplied or to be supplied by any Parent Entity
for inclusion in the Registration Statement to be filed by Parent with the SEC,
will, when the Registration Statement becomes effective, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
to make the statements therein not misleading. None of the information supplied
or to be supplied by any Parent Entity for inclusion in the Proxy Statement to
be mailed to Company's stockholders in connection with the Stockholders'
Meeting, and any other documents to be filed by any Parent Entity with the SEC
in connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy Statement, when
first mailed to the stockholders of Company, be false or misleading with respect
to any material fact, or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or, in the case of the Proxy Statement or any amendment thereof
or supplement thereto, at the time of the Stockholders' Meeting, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of any proxy for the Stockholders' Meeting. All documents that
any Parent Entity is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law. Notwithstanding the
foregoing, Parent makes no representation or warranty with respect to any
information supplied by any Company Entity which is contained in any of the
foregoing documents.
6.13 AUTHORITY OF SUB
Sub is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware as a wholly owned Subsidiary of
Parent. The authorized capital stock of Sub shall consist of 1,000 shares of Sub
Common Stock, all of which is validly issued and outstanding, fully paid and
nonassessable and is owned by Parent free and clear of any Lien. Sub has the
corporate power and authority necessary to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein, including the Merger, have
been duly and validly authorized by all necessary corporate action in respect
thereof on the part of Sub. This Agreement represents a legal, valid, and
binding obligation of Sub, enforceable against Sub in accordance with its terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting
the enforcement of creditors' rights generally and except that the availability
of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought).
Parent, as the sole stockholder of Sub, has voted prior to the Effective Time
the shares of Sub Common Stock in favor of adoption of this Agreement, as and to
the extent required by applicable Law.
6.14 TAX AND REGULATORY MATTERS
No Parent Entity or, to the Knowledge of Parent, any Affiliate thereof
has taken or agreed to take any action nor does Parent have any Knowledge of any
fact or circumstance relating to
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the Parent Entities that is reasonably likely to (i) prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay receipt of any
Consents of Regulatory Authorities referred to in Section 9.1(b).
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF COMPANY
From the date of this Agreement until the earlier of the Effective Time
or the termination of this Agreement, unless the prior written consent of Parent
shall have been obtained, and except as otherwise expressly contemplated herein,
Company shall and shall cause each of its Subsidiaries to (a) operate its
business only in the ordinary course, (b) use all reasonable efforts to preserve
intact its business organization and Assets and maintain its rights and
franchises, and (c) take no action which would (i) materially adversely affect
the ability of any Party to obtain any Consents required for the transactions
contemplated hereby, or (ii) materially adversely affect the ability of any
Party to perform its covenants and agreements under this Agreement.
7.2 NEGATIVE COVENANTS OF COMPANY
From the date of this Agreement until the earlier of the Effective Time
or the termination of this Agreement, unless the prior written consent of Parent
shall have been obtained, and except as otherwise expressly contemplated herein,
Company covenants and agrees that it will not do or agree or commit to do, or
permit any of its Subsidiaries to do or agree or commit to do, any of the
following:
(a) amend the Certificate of Incorporation, Bylaws or other
governing instruments of any Company Entity; provided, that
notwithstanding the foregoing, Company shall, as soon as practicable
after the date of this Agreement, take all such action as may be
required under its Certificate of Incorporation, as amended, and
applicable Law to effect an amendment to the Certificate of Designations
relating to the Company Series H Stock, as contemplated by Section 7(f)
of such Certificate of Designations, to the extent necessary to
implement the provisions of Section 3.1(e) of this Agreement, or
(b) incur any additional debt obligation or other obligation for
borrowed money (other than indebtedness of a Company Entity to another
Company Entity) in excess of an aggregate of $50,000 (for the Company
Entities on a consolidated basis) except in the ordinary course of
business consistent with past practices, or impose, or suffer the
imposition, on any Asset of any Company Entity of any Lien or permit any
such Lien to exist (other than in connection with Liens in effect as of
the date hereof that are disclosed in the Company Disclosure Memorandum
or Liens that are not reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect); or
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(c) repurchase, redeem, or otherwise acquire or exchange (other
than exchanges in the ordinary course under employee benefit plans or
pursuant to restricted stock agreements with Company employees or
consultants in accordance with the terms thereof in effect on the date
of this Agreement), directly or indirectly, any shares, or any
securities convertible into any shares, of the capital stock of any
Company Entity, or declare or pay any dividend or make any other
distribution in respect of Company's capital stock, provided that
Company shall (to the extent legally and contractually permitted to do
so) declare and pay regular quarterly cash dividends on the shares of
Company Series H Stock in accordance with the Company's Certificate of
Incorporation; or
(d) except for this Agreement, or pursuant to the exercise of
Equity Rights (including conversion of Company Series G Stock or Company
Series H Stock) outstanding as of the date hereof and pursuant to the
terms thereof in existence on the date hereof, or pursuant to the Stock
Option Agreement, or as disclosed in Section 7.2(d) of the Company
Disclosure Memorandum, issue, sell, pledge, encumber, authorize the
issuance of, enter into any Contract to issue, sell, pledge, encumber,
or authorize the issuance of, or otherwise permit to become outstanding,
any additional shares of Company Common Stock or any other capital stock
of any Company Entity, or any stock appreciation rights, or any option,
warrant, or other Equity Right; or
(e) adjust, split, combine or reclassify any capital stock of
any Company Entity or issue or authorize the issuance of any other
securities in respect of or in substitution for shares of Company Common
Stock, or sell, lease, mortgage or otherwise dispose of or otherwise
encumber (x) any shares of capital stock of any Company Subsidiary
(unless any such shares of stock are sold or otherwise transferred to
another Company Entity) or (y) any Asset having a book value in excess
of $100,000 other than in the ordinary course of business for reasonable
and adequate consideration, or transfer or license to any Person other
than Company or a wholly owned Company Subsidiary or otherwise extend,
amend or modify in any material respect any rights to material
Intellectual Property other than in the ordinary course of business
(including changing any domain names or failing to renew existing domain
name registrations on a timely basis), or enter into grants to future
Intellectual Property rights, other than in the ordinary course of
business consistent with past practice or as may be required by
applicable Law; or
(f) except for investments that are consistent with Company's
investment policies described in Section 7.2(f) of the Company
Disclosure Memorandum, purchase any securities or make any material
investment, either by purchase of stock of securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person other
than a wholly owned Company Subsidiary, or otherwise acquire direct or
indirect control over any Person; or
(g) (i) grant any increase in compensation or benefits to the
employees or officers of any Company Entity, except in accordance with
past practice disclosed in Section 7.2(g)(i) of the Company Disclosure
Memorandum or as required by Law; (ii) pay any severance or termination
pay or any bonus other than pursuant to written
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policies or written Contracts in effect on the date of this Agreement
and disclosed in Section 7.2(g)(ii) of the Company Disclosure
Memorandum; (iii) enter into or amend any severance agreements with
officers of any Company Entity; (iv) grant any material increase in fees
or other increases in compensation or other benefits to directors of any
Company Entity except in accordance with past practice disclosed in
Section 7.2(g)(iv) of the Company Disclosure Memorandum; or (v) waive
any stock repurchase rights, accelerate, amend or change the period of
exercisability of any Company Equity Rights or restricted stock, or
reprice Company Equity Rights granted under any Company Stock Plan or
authorize cash payments in exchange for any Company Equity Rights; or
(h) enter into or amend any employment Contract between any
Company Entity and any Person (unless such amendment is required by Law)
that the Company Entity does not have the unconditional right to
terminate without Liability (other than Liability for services already
rendered), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Company Entity or
terminate or withdraw from, or make any material change in or to, any
existing employee benefit plans of any Company Entity other than any
such change that is required by Law or that, in the opinion of counsel,
is necessary or advisable to maintain the tax qualified status of any
such plan, or make any distributions from such employee benefit plans,
except as required by Law, the terms of such plans or consistent with
past practice; or
(j) make any significant change in any Tax or accounting methods
or systems of internal accounting controls, except as may be appropriate
to conform to changes in Tax Laws or regulatory accounting requirements
or GAAP; or
(k) commence any Litigation other than in accordance with past
practice, settle any Litigation involving any Liability of any Company
Entity for material money damages or restrictions upon the operations of
any Company Entity; or
(l) except in the ordinary course of business, enter into,
modify, amend or terminate any Contract that is or would be a Company
Contract or waive, release, compromise or assign any material rights or
claims.
7.3 COVENANTS OF PARENT
From the date of this Agreement until the earlier of the Effective Time
or the termination of this Agreement, unless the prior written consent of
Company shall have been obtained, and except as otherwise expressly contemplated
herein, Parent covenants and agrees that it shall (a) continue to conduct its
business and the business of its Subsidiaries in a manner designed in its
reasonable judgment, to enhance the long-term value of the Parent Common Stock
and the business prospects of the Parent Entities and to the extent consistent
therewith use all reasonable efforts to preserve intact the Parent Entities'
core businesses and goodwill with their respective employees and customers, and
(b) take no action which would (i) materially adversely affect the ability of
any Party to obtain any Consents required for the transactions contemplated
hereby, or (ii) materially adversely affect the ability of any Party to perform
its covenants and agreements under this Agreement; provided, that the foregoing
shall not prevent any Parent Entity from
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acquiring any Assets or other businesses or from discontinuing or disposing of
any of its Assets or business if such action is, in the judgment of Parent,
desirable in the conduct of the business of Parent and its Subsidiaries. Parent
further covenants and agrees that it will not, without the prior written consent
of Company, which consent shall not be unreasonably withheld, amend the
Certificate of Incorporation or Bylaws of Parent, in each case, in any manner
adverse to the holders of Company Capital Stock as compared to rights of holders
of Parent Common Stock generally as of the date of this Agreement.
7.4 ADVERSE CHANGES IN CONDITION
Each Party agrees to give written notice promptly to the other Party
upon becoming aware of the occurrence or impending occurrence of any event or
circumstance relating to it or any of its Subsidiaries which (i) is reasonably
likely to have, individually or in the aggregate, a Company Material Adverse
Effect or a Parent Material Adverse Effect, as applicable, or (ii) would cause
or constitute a material breach of any of its representations, warranties, or
covenants contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.5 REPORTS
Each Party and its Subsidiaries shall file all reports required to be
filed by it with Regulatory Authorities between the date of this Agreement and
the Effective Time and shall deliver to the other Party copies of all such
reports promptly after the same are filed. If financial statements are contained
in any such reports filed with the SEC, such financial statements will fairly
present the consolidated financial position of the entity filing such statements
as of the dates indicated and the consolidated results of operations, changes in
stockholders' equity, and cash flows for the periods then ended in accordance
with GAAP (subject in the case of interim financial statements to normal
recurring year-end adjustments that are not material). As of their respective
dates, such reports filed with the SEC will comply in all material respects with
the Securities Laws and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Any financial statements contained in any other
reports to another Regulatory Authority shall be prepared in accordance with
Laws applicable to such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; STOCKHOLDER APPROVAL
(a) As soon as reasonably practicable after execution of this
Agreement, Parent shall prepare and file the Registration Statement with the
SEC, and shall use its reasonable efforts to cause the Registration Statement to
become effective under the Securities Act and take any action required to be
taken under the applicable state Blue Sky or securities Laws in connection with
the issuance of the shares of Parent Common Stock upon consummation of the
Merger. Company shall cooperate in the preparation and filing of the
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Registration Statement and shall furnish all information concerning it and the
holders of its capital stock as Parent may reasonably request in connection with
such action.
(b) Company shall call a Stockholders' Meeting, to be held as
soon as reasonably practicable after the Registration Statement is declared
effective by the SEC, for the purpose of voting upon adoption of this Agreement
and such other related matters as it deems appropriate. In connection with the
Stockholders' Meeting, Company shall prepare and file with the SEC a Proxy
Statement and mail such Proxy Statement to its stockholders and the Parties
shall furnish to each other all information concerning them that they may
reasonably request in connection with such Proxy Statement. Parent and Company
shall make all necessary filings with respect to the Merger under the Securities
Laws.
(c) In connection with the Stockholders' Meeting, the Board of
Directors of Company shall recommend to its stockholders the approval of the
matters submitted for approval; except as expressly permitted by this Section
8.1, neither the Board of Directors of Company (nor any committee thereof) shall
(i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or
modify, in a manner adverse to Parent, the approval or recommendation of such
Board of Directors or such committee of this Agreement, (ii) approve or
recommend, or propose publicly to approve or recommend, any Acquisition
Proposal, or (iii) cause Company to enter into any letter of intent, agreement
in principle, acquisition agreement or other similar agreement (each, a "Company
Acquisition Agreement") related to any Acquisition Proposal. Notwithstanding the
foregoing, provided that neither Company nor any of its Representatives shall
have violated any of the restrictions set forth in Section 8.8, in the event
that prior to Stockholders' Meeting (i) Company has received a Superior
Proposal, (ii) the Board of Directors of Company determines in good faith, after
consultation with its outside counsel, that, in light of such Superior Offer,
the withholding, withdrawal, amendment or modification of such recommendation is
required in order for the Board of Directors of Company to comply with its
obligations to Company stockholders under applicable law, the Board of Directors
of Company may (subject to this and the following sentences) inform Company
stockholders that it no longer believes that the Merger is advisable and no
longer recommends approval (a "Subsequent Determination"); provided, that
Company may make a Subsequent Determination only at a time that is after the
fifth business day following Parent's receipt of written notice advising Parent
that the Board of Directors of Company has received a Superior Proposal
specifying the material terms and conditions of such Superior Proposal (and
including a copy thereof with all accompanying documentation, if in writing),
identifying the person making such Superior Proposal and stating that it intends
to make a Subsequent Determination. After providing such notice, Company shall
provide a reasonable opportunity to Parent to make such adjustments in the terms
and conditions of this Agreement as would enable Company to proceed with its
recommendation to its stockholders without a Subsequent Determination; provided,
that any such adjustment shall be at the discretion of the Parties at the time.
(d) Subject to the provisions of this Section 8.1, the Board of
Directors and officers of Company shall use their reasonable efforts to obtain
such stockholders' approval. Company's obligation to call, give notice of,
convene and hold the Stockholders' Meeting in accordance with this Section 8.1
shall not be limited to or otherwise affected by the commencement, disclosure,
announcement or submission to Company of any Acquisition Proposal or the making
of any Subsequent Determination; provided, that, in the case of a
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Subsequent Determination, Company may delay or adjourn the Stockholders' Meeting
by not more than 15 business days in order to give holders of Company Capital
Stock a reasonable opportunity to consider such Subsequent Determination.
8.2 EXCHANGE LISTING
To the extent required by the rules of the Nasdaq National Market,
Parent shall prepare and file with the Nasdaq National Market, prior to the
Effective Time, a Notification of Additional Listing with respect to the shares
of Parent Common Stock to be issued to the holders of Company Capital Stock
pursuant to the Merger, and Parent shall give all notices and make all filings
with the Nasdaq National Market required in connection with the transactions
contemplated herein.
8.3 ANTITRUST NOTIFICATION; CONSENTS OF REGULATORY AUTHORITIES
(a) To the extent required by the HSR Act, each of the Parties
will, within five business days of the date hereof, file with the United States
Federal Trade Commission ("FTC") and the United States Department of Justice
("DOJ") the notification and report form required for the transactions
contemplated hereby, will promptly file any supplemental or additional
information which may reasonably be requested in connection therewith pursuant
to the HSR Act, and will comply in all material respects with the requirements
of the HSR Act. Each Party shall use its reasonable efforts to resolve
objections, if any, which may be asserted with respect to the Merger under the
HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal
Trade Commission Act, as amended, and any other federal, state or foreign law
or, regulation or decree designed to prohibit, restrict or regulate actions for
the purpose or effect of monopolization or restraint of trade (collectively
"Antitrust Laws"). In the event a suit is threatened or instituted challenging
the Merger as violative of Antitrust Laws, each Party shall use its reasonable
efforts to avoid the filing of, or resist or resolve such suit. Each Party shall
use its reasonable efforts to take such action as may be required by: (x) the
DOJ or the FTC in order to resolve such objections as either of them may have to
the Merger under the Antitrust Laws, or (y) any federal or state court of the
United States, in any suit brought by any Regulatory Authority or any other
Person challenging the Merger as violative of the Antitrust Laws, in order to
avoid the entry of any injunction or other Order (whether temporary, preliminary
or permanent) which has the effect of preventing the consummation of the Merger
and to have vacated, lifted, reversed or overturned any such Order. Reasonable
efforts shall not include the willingness of Parent to accept an Order agreeing
to the divestiture, or the holding separate, of any Assets of any Parent Entity
or any Company Entity which Parent reasonably determines to be material to
Parent or to benefits of the transaction for which it has bargained for
hereunder. Parent shall be entitled to direct any proceedings or negotiations
with any Regulatory Authority relating to any of the foregoing, provided that it
shall afford Company a reasonable opportunity to participate therein.
Notwithstanding anything to the contrary in this Section, no Parent Entity shall
be required to divest any of its businesses, product lines or Assets, or to take
or agree to take any other action or agree to any limitation, that could
reasonably be expected to have a material adverse effect on Parent or on Parent
combined with Company after the Effective Time.
(b) The Parties hereto shall cooperate with each other and use
their reasonable efforts to promptly prepare and file all necessary
documentation, to effect all applications,
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notices, petitions and filings (which shall include the filings pursuant to
subsection (a) above), and to obtain as promptly as practicable all Consents of
all Regulatory Authorities and other Persons which are necessary or advisable to
consummate the transactions contemplated by this Agreement (including the
Merger). Each Party shall have the right to review in advance, and to the extent
practicable each will consult the other on, in each case subject to applicable
Laws relating to the exchange of information, all the information relating to
the other Party which appears in any filing made with, or written materials
submitted to, any Regulatory Authority or other Person in connection with the
transactions contemplated by this Agreement; provided, that nothing contained
herein shall be deemed to provide either Party with a right to review any
information provided to any Regulatory Authority on a confidential basis in
connection with the transactions contemplated hereby. To the extent permitted by
Law, each of the Parties shall deliver to the other copies of all filings,
correspondence with and Orders from all Regulatory Authorities in connection
with the transactions contemplated hereby and shall promptly notify each other
of any communication with any Regulatory Authority or other Person and provide
the other Party with an opportunity to participate in any meetings with a
Regulatory Authority or other Person relating thereto. In exercising the
foregoing right, each of the Parties hereto shall act reasonably and as promptly
as practicable. The Parties agree that they will consult with each other with
respect to the obtaining of all Consents of all Regulatory Authorities and other
Persons necessary or advisable to consummate the transactions contemplated by
this Agreement and each Party will keep the other apprised of the status of
matters relating to contemplation of the transactions contemplated herein. Each
Party also shall promptly advise the other upon receiving any communication from
any Regulatory Authority whose Consent is required for consummation of the
transactions contemplated by this Agreement which causes such Party to believe
that there is a reasonable likelihood that any requisite Consent will not be
obtained or that the receipt of any such Consent will be materially delayed.
8.4 FILINGS WITH STATE OFFICES
Upon the terms and subject to the conditions of this Agreement, Company
shall execute and file the Certificate of Merger with the Secretary of State of
the State of Delaware in connection with the Closing.
8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE
Subject to the terms and conditions of this Agreement, each Party agrees
to use, and to cause its Subsidiaries to use, its reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper, or advisable under applicable Laws to consummate and make
effective, as soon as reasonably practicable after the date of this Agreement,
the transactions contemplated by this Agreement, including using its reasonable
efforts to lift or rescind any Order adversely affecting its ability to
consummate the transactions contemplated herein, to obtain all Consents
necessary or desirable for the consummation of the transactions contemplated by
this Agreement, and to cause to be satisfied the conditions referred to in
Article 9; provided, that nothing herein shall preclude either Party from
exercising its rights under this Agreement or the Stock Option Agreement.
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8.6 INVESTIGATION AND CONFIDENTIALITY
(a) Prior to the Effective Time, each Party shall keep the other
Party advised of all material developments relevant to its business and to
consummation of the Merger and shall permit the other Party to make or cause to
be made such investigation of the business and properties of it and its
Subsidiaries and of their respective financial and legal conditions as the other
Party reasonably requests, provided that such investigation shall be reasonably
related to the transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. No investigation by a Party shall affect
the representations and warranties of the other Party.
(b) In addition to the Parties' respective obligations under the
Confidentiality Agreement, which is hereby reaffirmed and adopted, and
incorporated by reference herein, each Party shall, and shall cause its advisers
and agents to, maintain the confidentiality of all confidential information
furnished to it by the other Party concerning its and its Subsidiaries'
businesses, operations, and financial positions and shall not use such
information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Effective Time, each Party shall promptly return or certify the destruction of
all documents and copies thereof, and all work papers containing confidential
information received from the other Party.
(c) Company shall use its reasonable efforts to exercise its
rights, and shall not waive any of its rights, under confidentiality agreements
entered into with Persons which were considering an Acquisition Proposal with
respect to Company to preserve the confidentiality of the information relating
to the Company Entities provided to such Persons and their Affiliates and
Representatives.
(d) Each Party agrees to give the other Party notice as soon as
practicable after any determination by it of any fact or occurrence relating to
the other Party which it has discovered through the course of its investigation
and which represents, or is reasonably likely to represent, either a material
breach of any representation, warranty, covenant or agreement of the other Party
or which has had or is reasonably likely to have a Company Material Adverse
Effect or a Parent Material Adverse Effect, as applicable.
8.7 PRESS RELEASES
Prior to the Effective Time, Company and Parent shall consult with each
other as to the form and substance of any press release or other public
disclosure materially related to this Agreement or any other transaction
contemplated hereby; provided, that nothing in this Section 8.7 shall be deemed
to prohibit any Party from making any disclosure which its counsel deems
necessary or advisable in order to satisfy such Party's disclosure obligations
imposed by Law.
8.8 NO SOLICITATION
Except with respect to this Agreement and the transactions contemplated hereby,
no Company Entity nor any Affiliate thereof nor any Representative thereof
retained by any Company Entity shall, directly or indirectly, initiate, solicit,
encourage or knowingly facilitate
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(including by way of furnishing non-public information) any inquiries or the
making of any Acquisition Proposal. Notwithstanding anything herein to the
contrary, Company and its Board of Directors shall be permitted (i) to the
extent applicable, to comply with Rule 14d-9 and Rule 14e-2 promulgated under
the Exchange Act with regard to an Acquisition Proposal, (ii) to engage in any
discussions or negotiations with, or provide any information to, any Person in
response to an unsolicited bona fide written Acquisition Proposal by any such
Person, if and only to the extent that (a) Company stockholders shall not have
approved adoption of this Agreement at the Stockholders' Meeting, (b) Company's
Board of Directors concludes in good faith and consistent with its fiduciary
duties to Company's stockholders under applicable Law that such Acquisition
Proposal could reasonably be expected to result in a Superior Proposal, (c)
prior to providing any information or data to any Person in connection with an
Acquisition Proposal by any such Person, Company's Board of Directors receives
from such Person an executed confidentiality agreement containing
confidentiality terms at least as stringent as those contained in the
Confidentiality Agreement, and (d) prior to providing any information or data to
any Person or entering into discussions or negotiations with any Person,
Company's Board of Directors notifies Parent promptly of such inquiries,
proposals or offers received by, any such information requested from, or any
such discussions or negotiations sought to be initiated or continued with, any
of its Representatives indicating, in connection with such notice, the name of
such Person and the material terms and conditions of any inquiries, proposals or
offers. Company agrees that it will promptly keep Parent informed of the status
and terms of any such proposals or offers and the status and terms of any such
discussions or negotiations. Company agrees that it will, and will cause its
officers, directors and Representatives to, immediately cease and cause to be
terminated any activities, discussions or negotiations existing as of the date
of this Agreement with any parties conducted heretofore with respect to any
Acquisition Proposal. Company agrees that it will use reasonable best efforts to
promptly inform its directors, officers, key employees, agents and
Representatives of the obligations undertaken in this Section 8.8. Nothing in
this Section 8.8 shall (x) permit Company to terminate this Agreement (except as
specifically provided in Article 10) or (y) affect any other obligation of
Parent or Company under this Agreement.
8.9 TAX TREATMENT
Each of the Parties undertakes and agrees to use its reasonable efforts
to cause the Merger, and to take no action which would cause the Merger not, to
qualify for treatment as a "reorganization" within the meaning of Section 368(a)
of the Internal Revenue Code for federal income tax purposes.
8.10 STATE TAKEOVER LAWS
Each Company Entity shall take all necessary steps to exempt the
transactions contemplated by this Agreement from, or if necessary to challenge
the validity or applicability of, any applicable Takeover Law.
8.11 CHARTER PROVISIONS
Each Company Entity shall take all necessary action to ensure that the
entering into of this Agreement and the consummation of the Merger and the other
transactions contemplated
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hereby do not and will not result in the grant of any rights to any Person under
the Certificate of Incorporation, Bylaws or other governing instruments of any
Company Entity or restrict or impair the ability of Parent or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a stockholder with
respect to, shares of any Company Entity that may be directly or indirectly
acquired or controlled by them.
8.12 AGREEMENT OF AFFILIATES
Company has disclosed in Section 8.12 of the Company Disclosure
Memorandum all Persons whom it reasonably believes is an "affiliate" of Company
for purposes of Rule 145 under the Securities Act. Company shall use its
reasonable efforts to cause each such Person to deliver to Parent concurrently
with the execution of this Agreement and thereafter from any other person who
may be deemed an affiliate of the Company (collectively, "Company Affiliates")
not later than 30 days after the date of this Agreement, a written agreement,
substantially in the form of Exhibit 3, providing that such Person will not
sell, pledge, transfer, or otherwise dispose of the shares of Company Capital
Stock held by such Person except as contemplated by such agreement or by this
Agreement and will not sell, pledge, transfer, or otherwise dispose of the
shares of Parent Common Stock to be received by such Person upon consummation of
the Merger except in compliance with applicable provisions of the Securities Act
and the rules and regulations thereunder.
8.13 EMPLOYEE MATTERS
(a) Following the Effective Time, Parent shall provide generally
to officers and employees of the Company Entities employee benefits under
employee benefit and welfare plans (other than stock option or other plans
involving the potential issuance of Parent Common Stock), on terms and
conditions which when taken as a whole are substantially similar to those
currently provided by the Parent Entities to their similarly situated officers
and employees. For purposes of participation, vesting and benefit accrual under
Parent's employee benefit plans, the service of the employees of the Company
Entities prior to the Effective Time shall be treated as service with a Parent
Entity participating in such employee benefit plans.
(b) Parent shall cause the Surviving Corporation and its
Subsidiaries to honor in accordance with their terms all employment, severance,
consulting and other compensation Contracts disclosed in Section 8.13(b) of the
Company Disclosure Memorandum between any Company Entity and any current or
former director, officer, or employee thereof, and all provisions for vested
benefits or other vested amounts earned or accrued through the Effective Time
under the Company Benefit Plans.
8.14 INDEMNIFICATION
(a) For a period of six years after the Effective Time, Parent
shall cause the Surviving Corporation to indemnify, defend and hold harmless the
present and former directors, officers, employees and agents of Company (each,
an "Indemnified Party") against all Liabilities arising out of actions or
omissions arising out of the Indemnified Party's service or services as
directors, officers, employees or agents of Company or, at Company's request, of
another corporation, partnership, joint venture, trust or other enterprise
occurring at or prior to the
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Effective Time (including the transactions contemplated by this Agreement) to
the fullest extent permitted under Delaware Law and by Company's Certificate of
Incorporation, Bylaws and indemnification agreements between Company and its
directors and officers identified in Section 8.14 of the Company Disclosure
Memorandum, in each case as in effect on the date hereof, including provisions
relating to advances of expenses incurred in the defense of any Litigation and
whether or not any Parent Entity is insured against any such matter. Without
limiting the foregoing, in any case in which approval by the Surviving
Corporation is required to effectuate any indemnification, the Surviving
Corporation shall direct, at the election of the Indemnified Party, that the
determination of any such approval shall be made by independent counsel mutually
agreed upon between Parent and the Indemnified Party.
(b) Parent shall, or shall cause the Surviving Corporation to,
maintain in effect, if available, for a period of three years after the
Effective Time Company's existing directors' and officers' liability insurance
policy (provided that Parent may substitute therefor (i) policies of at least
the same coverage and amounts containing terms and conditions which are
substantially no less advantageous or (ii) with the consent of Company given
prior to the Effective Time, any other policy) with respect to claims arising
from facts or events which occurred prior to the Effective Time and covering
persons who are currently covered by such insurance; provided, that neither
Parent nor the Surviving Corporation shall be obligated to make aggregate
premium payments for such three-year period in respect of such policy (or
coverage replacing such policy) which exceed, for the portion related to
Company's directors and officers, 150% of the annual premium payments on
Company's current policies in effect as of the date of this Agreement (the
"Maximum Amount"). If the amount of the premiums necessary to maintain or
procure such insurance coverage exceeds the Maximum Amount, Parent shall
maintain the most advantageous policies of directors' and officers' liability
insurance obtainable for a premium equal to the Maximum Amount.
(c) If the Surviving Corporation or any successors or assigns
shall consolidate with or merge into any other Person and shall not be the
continuing or surviving Person of such consolidation or merger or shall transfer
all or substantially all of its assets to any Person, then and in each case,
proper provision shall be made so that the successors and assigns of the
Surviving Corporation shall assume the obligations set forth in this Section
8.14.
(d) The provisions of this Section 8.14 are intended to be for
the benefit of and shall be enforceable by, each Indemnified Party and their
respective heirs and representatives.
8.15 NONCOMPETITION AGREEMENTS
Company shall use its best efforts to assist Parent in obtaining
executed noncompetition agreements, in substantially the form attached as
Exhibit 4, from those officers and management designated in Section 8.15 of the
Parent Disclosure Memorandum.
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ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY
The respective obligations of each Party to perform this Agreement and
consummate the Merger and the other transactions contemplated hereby are subject
to the satisfaction of the following conditions, unless waived by both Parties
pursuant to Section 11.6:
(a) STOCKHOLDER APPROVAL. The stockholders of Company shall have
adopted this Agreement as and to the extent required by Law, by the
provisions of any governing instruments, or by the rules of the Nasdaq
National Market.
(b) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or made
and shall be in full force and effect and all waiting periods required
by Law shall have expired, except for any such Consents, filings,
registrations and notifications which, if not obtained or made, as
applicable, are not reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect or a Parent Material
Adverse Effect, as applicable.
(c) CONSENTS AND APPROVALS. Each Party shall have obtained any
and all Consents required for consummation of the Merger (other than
those referred to in Section 9.1(b)) or for the preventing of any
Default under any Contract or Permit of such Party which, if not
obtained or made, is reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect or a Parent Material
Adverse Effect, as applicable.
(d) LEGAL PROCEEDINGS. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits or
makes illegal consummation of the transactions contemplated by this
Agreement.
(e) REGISTRATION STATEMENT. The Registration Statement shall be
effective under the Securities Act, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued, no
action, suit, proceeding or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing, and
all necessary approvals under state securities Laws or the Securities
Act or Exchange Act relating to the issuance or trading of the shares of
Parent Common Stock issuable pursuant to the Merger shall have been
received.
(f) TAX MATTERS. Each Party shall have received a written
opinion of counsel from Alston & Bird LLP, in form reasonably
satisfactory to such Parties and dated as of the Closing Date (the "Tax
Opinion"), to the effect that (i) the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Internal
Revenue Code, (ii) the exchange in the Merger of Company Capital Stock
for Parent Common Stock will not give rise to gain or loss to the
stockholders of Company with respect to such
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exchange (except to the extent of any cash received), and (iii) none of
Company, Sub or Parent will recognize gain or loss as a consequence of
the Merger (except for amounts related to intercompany transactions,
accounting methods, changes in accounting methods, or similar amounts).
In rendering such Tax Opinion, such counsel shall be entitled to rely
upon representations of officers of Company and Parent reasonably
satisfactory in form and substance to such counsel. Notwithstanding the
foregoing, if Alston & Bird LLP does not render such opinion, this
condition shall nonetheless be deemed satisfied if such opinion is
rendered to the Parties by Latham & Watkins, counsel to Company.
9.2 CONDITIONS TO OBLIGATIONS OF PARENT
The obligations of Parent to perform this Agreement and consummate the
Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by Parent pursuant to
Section 11.6(a):
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this Section
9.2(a), the accuracy of the representations and warranties of Company
set forth in this Agreement shall be assessed as of the date of this
Agreement and as of the Effective Time with the same effect as though
all such representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are
confined to a specified date shall speak only as of such date). The
representations and warranties set forth in Section 5.3 shall be true
and correct (except for inaccuracies which are de minimus in amount).
The representations and warranties set forth in Sections 5.18, 5.19,
5.20, 5.21, and 5.22 shall be true and correct in all material respects.
There shall not exist inaccuracies in the representations and warranties
of Company set forth in this Agreement (including the representations
and warranties set forth in Sections 5.3, 5.18, 5.19, 5.20, 5.21, and
5.22) such that the aggregate effect of such inaccuracies has, or is
reasonably likely to have, a Company Material Adverse Effect; provided
that, for purposes of this sentence only, those representations and
warranties which are qualified by references to "material" or "Material
Adverse Effect" or to the "Knowledge" of any Person shall be deemed not
to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
agreements and covenants of Company to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Effective Time shall have been duly performed and complied
with in all material respects.
(c) CERTIFICATES. Company shall have delivered to Parent (i) a
certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to
Company and in Section 9.2(a) and 9.2(b) have been satisfied, and (ii)
certified copies of resolutions duly adopted by Company's Board of
Directors and stockholders evidencing the taking of all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby.
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9.3 CONDITIONS TO OBLIGATIONS OF COMPANY
The obligations of Company to perform this Agreement and consummate the
Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by Company pursuant to
Section 11.6(b):
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this Section
9.3(a), the accuracy of the representations and warranties of Parent set
forth in this Agreement shall be assessed as of the date of this
Agreement and as of the Effective Time with the same effect as though
all such representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are
confined to a specified date shall speak only as of such date). The
representations and warranties set forth in Section 6.3 shall be true
and correct (except for inaccuracies which are de minimus in amount).
The representations and warranties of Parent set forth in Section 6.14
shall be true and correct in all material respects. There shall not
exist inaccuracies in the representations and warranties of Parent set
forth in this Agreement (including the representations and warranties
set forth in Sections 6.3 and 6.14) such that the aggregate effect of
such inaccuracies has, or is reasonably likely to have, a Parent
Material Adverse Effect; provided that, for purposes of this sentence
only, those representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" or to the
"Knowledge" of any Person shall be deemed not to include such
qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
agreements and covenants of Parent to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Effective Time shall have been duly performed and complied
with in all material respects.
(c) CERTIFICATES. Parent shall have delivered to Company (i) a
certificate, dated as of the Effective Time and signed on its behalf by
a duly authorized officer, to the effect that the conditions set forth
in Section 9.1 as relates to Parent and in Section 9.3(a) and 9.3(b)
have been satisfied, and (ii) certified copies of resolutions duly
adopted by Parent's Board of Directors and Sub's Board of Directors and
sole stockholder evidencing the taking of all corporate action necessary
to authorize the execution, delivery and performance of this Agreement,
and the consummation of the transactions contemplated hereby.
ARTICLE 10
TERMINATION
10.1 TERMINATION
Notwithstanding any other provision of this Agreement, and
notwithstanding the approval of this Agreement by the stockholders of Company,
this Agreement may be terminated and the Merger abandoned at any time prior to
the Effective Time:
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(a) By mutual written consent of Parent and Company; or
(b) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or
other agreement contained in this Agreement) in the event of a material
breach by the other Party of any representation or warranty contained in
this Agreement which cannot be or has not been cured within 30 days
after the giving of written notice to the breaching Party of such breach
and which breach is reasonably likely, in the opinion of the
non-breaching Party, to have, individually or in the aggregate, a
Company Material Adverse Effect or a Parent Material Adverse Effect, as
applicable, on the breaching Party; or
(c) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or
other agreement contained in this Agreement) in the event of a material
breach by the other Party of any covenant or agreement contained in this
Agreement which cannot be or has not been cured within 30 days after the
giving of written notice to the breaching Party of such breach; or
(d) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or
other agreement contained in this Agreement) in the event (i) any
Consent of any Regulatory Authority required for consummation of the
Merger and the other transactions contemplated hereby shall have been
denied by final nonappealable action of such authority or if any action
taken by such authority is not appealed within the time limit for
appeal, or (ii) the stockholders of Company fail to vote their approval
of the matters relating to this Agreement and the transactions
contemplated hereby at the Stockholders' Meeting where such matters were
presented to such stockholders for approval and voted upon; or
(e) By either Party in the event that the Merger shall not have
been consummated by August 31, 2000, if the failure to consummate the
transactions contemplated hereby on or before such date is not caused by
any breach of this Agreement by the Party electing to terminate pursuant
to this Section 10.1(e); or
(f) By either Party (provided that the terminating Party is not
then in material breach of any representation, warranty, covenant, or
other agreement contained in this Agreement) in the event that any of
the conditions precedent to the obligations of such Party to consummate
the Merger cannot be satisfied or fulfilled by the date specified in
Section 10.1(e); or
(g) By Parent, if a Triggering Event shall have occurred.
10.2 EFFECT OF TERMINATION
In the event of the termination and abandonment of this Agreement
pursuant to Section 10.1, this Agreement shall become void and have no effect,
except that (i) the provisions of this Section 10.2 and Article 11 and Section
8.6(b) shall survive any such termination and abandonment, and (ii) a
termination pursuant to Sections 10.1(b), 10.1(c) or 10.1(f) shall not relieve
the breaching Party from Liability for an uncured willful breach of a
representation,
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warranty, covenant, or agreement giving rise to such termination. The Stock
Option Agreement shall be governed by its own terms as to its termination.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS
The respective representations, warranties, obligations, covenants, and
agreements of the Parties shall not survive the Effective Time except this
Section 10.3 and Article 1, Article 2, Article 3, Article 4, Article 11 and
Sections 8.13 and 8.14.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS
(a) Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
"ACQUISITION PROPOSAL" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger, acquisition
of all of the stock or assets of, or other business combination
involving the acquisition of such Party or any of its Subsidiaries or
the acquisition of a substantial equity interest in, or a substantial
portion of the consolidated assets of, such Party or any of its
Subsidiaries.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person; or (ii) any
officer, director, partner, employer, or direct or indirect beneficial
owner of any 10% or greater equity or voting interest of such Person.
"AGREEMENT" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated herein
by reference.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature, character
and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized
in such Person's business, directly or indirectly, in whole or in part,
whether or not carried on the books and records of such Person, and
whether or not owned in the name of such Person or any Affiliate of such
Person and wherever located.
"CERTIFICATE OF MERGER" shall mean the Certificate of Merger to
be executed by Company and filed with the Secretary of State of the
State of Delaware relating to the Merger as contemplated by Section 8.4.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"COMPANY CAPITAL STOCK" shall mean, collectively, the Company
Common Stock, the Company Preferred Stock and any other class or series
of capital stock of Company.
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"COMPANY COMMON STOCK" shall mean the $.001 par value common
stock of Company.
"COMPANY DISCLOSURE MEMORANDUM" shall mean the written
information entitled "InterVU Inc. Disclosure Memorandum" delivered
prior to the date of this Agreement to Parent describing the matters
contained therein and, with respect to each disclosure made therein,
specifically referencing each Section or subsection of this Agreement
under which such disclosure is being made. Information disclosed with
respect to one Section or subsection shall be deemed to be disclosed for
purposes of all other Sections or subsections not specifically
referenced with respect thereto to the extent that the application of
such disclosure to such other Sections or subsections is reasonably
apparent from the disclosure contained therein.
"COMPANY ENTITIES" shall mean, collectively, Company and all
Company Subsidiaries.
"COMPANY FINANCIAL STATEMENTS" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of
Company as of September 30, 1999, and as of December 31, 1998 and 1997,
and the related statements of operations, stockholders' equity, and cash
flows (including related notes and schedules, if any) for the nine
months ended September 30, 1999, and for each of the three fiscal years
ended December 31, 1998, 1997 and 1996, as filed by Company in SEC
Documents, and (ii) the consolidated balance sheets of Company
(including related notes and schedules, if any) and related statements
of operations, stockholders' equity, and cash flows (including related
notes and schedules, if any) included in SEC Documents filed with
respect to periods ended subsequent to September 30, 1999.
"COMPANY MATERIAL ADVERSE EFFECT" shall mean an event, change or
occurrence which, individually or together with any other event, change
or occurrence, has a material adverse impact on (i) the financial
position, business, or results of operations of Company and its
Subsidiaries, taken as a whole, or (ii) the ability of Company to
perform its obligations under this Agreement or to consummate the Merger
or the other transactions contemplated by this Agreement, provided that
"Company Material Adverse Effect" shall not be deemed to include the
impact of (a) changes in Laws of general applicability or
interpretations thereof by courts or governmental authorities, (b)
changes in generally accepted accounting principles, (c) actions and
omissions of Company (or any of its Subsidiaries) taken with the prior
informed written Consent of Parent in contemplation of the transactions
contemplated hereby, (d) the direct effects of compliance with this
Agreement on the operating performance of Company, including expenses
incurred by Company in consummating the transactions contemplated by
this Agreement, and (e) effects demonstrably shown to have been
proximately caused by the public announcement of, and the response or
reaction of customers, vendors, licensors, investors or employees of
Company to, this Agreement or any of the transactions contemplated by
this Agreement.
"COMPANY PREFERRED STOCK" shall mean the $.001 par value
preferred stock of Company and shall include the Series G Convertible
Preferred Stock of Company
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("Company Series G Stock") and the Series H Convertible Preferred Stock
of Company ("Company Series H Stock").
"COMPANY STOCK PLANS" shall mean the existing stock option and
other stock-based compensation plans of Company designated as follows:
(i) 1996 Stock Plan of InterVU Inc., (ii) Second Amended and Restated
1998 Stock Option Plan of InterVU Inc., and (iii) Employee Qualified
Stock Purchase Plan of InterVU Inc..
"COMPANY SUBSIDIARIES" shall mean the Subsidiaries of Company,
which shall include the Company Subsidiaries described in Section 5.4
and any corporation or other organization acquired as a Subsidiary of
Company in the future and held as a Subsidiary by Company at the
Effective Time.
"CONFIDENTIALITY AGREEMENT" shall mean that certain Confidential
Disclosure Agreement, dated August 27, 1999, between Parent and Company.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument,
lease, obligation, plan, practice, restriction, understanding, or
undertaking of any kind or character, or other document to which any
Person is a party or that is binding on any Person or its capital stock,
Assets or business.
"DEFAULT" shall mean (i) any breach or violation of, default
under, contravention of, or conflict with, any Contract, Law, Order, or
Permit, (ii) any occurrence of any event that with the passage of time
or the giving of notice or both would constitute a breach or violation
of, default under, contravention of, or conflict with, any Contract,
Law, Order, or Permit, or (iii) any occurrence of any event that with or
without the passage of time or the giving of notice would give rise to a
right of any Person to exercise any remedy or obtain any relief under,
terminate or revoke, suspend, cancel, or modify or change the current
terms of, or renegotiate, or to accelerate the maturity or performance
of, or to increase or impose any Liability under, any Contract, Law,
Order, or Permit.
"DGCL" shall mean the Delaware General Corporation Law.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient air,
surface water, ground water, land surface, or subsurface strata) and
which are administered, interpreted, or enforced by the United States
Environmental Protection Agency and state and local agencies with
jurisdiction over, and including common law in respect of, pollution or
protection of the environment, including the Comprehensive Environmental
Response Compensation and Liability Act, as amended, 42 U.S.C. 9601 et
seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
6901 et seq., and other Laws relating to emissions, discharges,
releases, or threatened releases of any Hazardous Material, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of any Hazardous Material.
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"EQUITY RIGHTS" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Equity Rights.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"EXCHANGE RATIOS" shall mean the Common Exchange Ratio, the
Series G Exchange Ratio and the Series H Exchange Ratio.
"EXHIBITS" 1 through 3, inclusive, shall mean the Exhibits so
marked, copies of which are attached to this Agreement. Such Exhibits
are hereby incorporated by reference herein and made a part hereof, and
may be referred to in this Agreement and any other related instrument or
document without being attached hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"HSR ACT" shall mean Section 7A of the Clayton Act, as added by
Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"INTELLECTUAL PROPERTY" shall mean the following items: (i)
inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto and all patents, patent
applications and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions and
reexaminations thereof; (ii) trademarks, service marks, trade dress,
domain names, maskworks, logos, trade names and corporate names,
including all goodwill associated therewith and all applications,
registrations and renewals in connection therewith; (ii) copyrightable
works, copyrights and all applications, registrations and renewals in
connection therewith; (iv) trade secrets and confidential business
information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer
and supplier lists, pricing and cost information and business and
marketing plans and proposals); (v) computer software, together with all
translations, adaptations, derivations and combinations thereof
(including any source or object codes therefor or documentation
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relating thereto); (vi) all other proprietary rights; and (vii) all
copies and tangible embodiments thereof (in whatever form or medium).
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean
those facts that are known by the chairman, president, chief financial
officer, chief accounting officer, chief operating officer, or general
counsel of such Person or any of the other individuals listed in Section
11.1(a) of the Company Disclosure Memorandum and the Parent Disclosure
Memorandum, as applicable.
"LAW" shall mean any code, law (including common law),
ordinance, regulation, reporting or licensing requirement, rule, or
statute applicable to a Person or its Assets, Liabilities, or business,
including those promulgated, interpreted or enforced by any Regulatory
Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim,
deficiency, guaranty or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for
collection or deposit in the ordinary course of business) of any type,
whether accrued, absolute or contingent, liquidated or unliquidated,
matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation, restriction, security interest,
title retention or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current Taxes not yet due and payable, and (ii) Liens which do not
materially impair the use of or title to the Assets subject to such
Lien.
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, governmental or other
examination or investigation, hearing, administrative or other
proceeding relating to or affecting a Party, its business, its Assets
(including Contracts related to it), or the transactions contemplated by
this Agreement.
"MATERIAL" for purposes of this Agreement shall be determined in
light of the facts and circumstances of the matter in question; provided
that any specific monetary amount stated in this Agreement shall
determine materiality in that instance.
"NASDAQ NATIONAL MARKET" shall mean the National Market System
of the Nasdaq Stock Market, Inc.
"OPERATING PROPERTY" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries or in
which such Party or Subsidiary holds an
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interest, and, where required by the context, includes the owner or
operator of such property, but only with respect to such property.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling,
or writ of any federal, state, local or foreign or other court,
arbitrator, mediator, tribunal, administrative agency, or Regulatory
Authority.
"PARENT CAPITAL STOCK" shall mean, collectively, the Parent
Common Stock, the Parent Preferred Stock and any other class or series
of capital stock of Parent.
"PARENT COMMON STOCK" shall mean the $.01 par value common stock
of Parent.
"PARENT DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Akamai Technologies, Inc. Disclosure Memorandum"
delivered prior to the date of this Agreement to Company describing the
matters contained therein and, with respect to each disclosure made
therein, specifically referencing each Section and subsection of this
Agreement under which such disclosure is being made. Information
disclosed with respect to one Section or subsection shall be deemed to
be disclosed for purposes of all other Sections or subsections not
specifically referenced with respect thereto to the extent that the
application of such disclosure to such other Sections or subsections is
reasonably apparent from the disclosure contained therein.
"PARENT ENTITIES" shall mean, collectively, Parent and all
Parent Subsidiaries.
"PARENT FINANCIAL STATEMENTS" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of Parent
as of September 30, 1999, and as of December 31, 1998, and the related
statements of operations, convertible preferred stock and stockholders'
deficit, and cash flows (including related notes and schedules, if any)
for the nine months ended September 30, 1999, and for the period from
inception (August 20, 1998) through December 31, 1998, as filed by
Parent in SEC Documents, and (ii) the consolidated balance sheets of
Parent (including related notes and schedules, if any) and related
statements of operations, stockholders' equity, and cash flows
(including related notes and schedules, if any) included in SEC
Documents filed with respect to periods ended subsequent to September
30, 1999.
"PARENT MATERIAL ADVERSE EFFECT" shall mean an event, change or
occurrence which, individually or together with any other event, change
or occurrence, has a material adverse impact on (i) the financial
position, business, or results of operations of Parent and its
Subsidiaries, taken as a whole, or (ii) the ability of Parent to perform
its obligations under this Agreement or to consummate the Merger or the
other transactions contemplated by this Agreement, provided that "Parent
Material Adverse Effect" shall not be deemed to include the impact of
(a) changes in Laws of general applicability or interpretations thereof
by courts or governmental authorities, (b) changes in generally accepted
accounting principles or regulatory accounting principles, (c) actions
and omissions of Parent (or any of its Subsidiaries) taken with the
prior informed written Consent of Company in contemplation of the
transactions contemplated hereby, (d) the direct effects of compliance
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with this Agreement on the operating performance of Parent, including
expenses incurred by Parent in consummating the transactions
contemplated by this Agreement, (e) effects demonstrably shown to have
been proximately caused by the public announcement of, and the response
or reaction of customers, vendors, licensors, investors or employees of
Parent to, this Agreement or any of the transactions contemplated by
this Agreement, or (f) changes in the market price or trading volume of
Parent Common Stock.
"PARENT PREFERRED STOCK" shall mean the $.01 par value preferred
stock of Parent.
"PARENT SUBSIDIARIES" shall mean the Subsidiaries of Parent,
which shall include any corporation or other organization acquired as a
Subsidiary of Parent in the future and held as a Subsidiary by Parent at
the Effective Time.
"PARTY" shall mean either Company or Parent, and "PARTIES" shall
mean both Company and Parent.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"PROXY STATEMENT" shall mean the proxy statement used by Company
to solicit the approval of its stockholders of the transactions
contemplated by this Agreement.
"REGISTRATION STATEMENT" shall mean the Registration Statement
on Form S-4, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC by
Parent under the Securities Act with respect to the shares of Parent
Common Stock to be issued to the stockholders of Company in connection
with the transactions contemplated by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC, the
FTC, the DOJ, and all other federal, state, county, local, foreign or
other governmental or regulatory agencies, authorities (including the
Nasdaq National Market and other self-regulatory authorities),
instrumentalities, commissions, boards or bodies having jurisdiction
over the Parties and their respective Subsidiaries.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative or
agent engaged by a Person.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed,
or required to be filed, by a Party or any of its Subsidiaries with any
Regulatory Authority pursuant to the Securities Laws.
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"SEC" shall mean the United States Securities Exchange
Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SECURITIES LAWS" shall mean the Securities Act, the Exchange
Act, the Investment Company Act of 1940, as amended, the Investment
Advisors Act of 1940, as amended, the Trust Indenture Act of 1939, as
amended, and the rules and regulations of any Regulatory Authority
promulgated thereunder.
"STOCKHOLDERS' MEETING" shall mean the meeting of the
stockholders of Company to be held pursuant to Section 8.1, including
any adjournment or adjournments thereof and any actions by written
consent in lieu of a meeting.
"SUB COMMON STOCK" shall mean the $.01 par value common stock of
Sub.
"SUBSIDIARIES" shall mean all those corporations, associations,
or other business entities of which the entity in question either (i)
owns or controls 50% or more of the outstanding equity securities either
directly or through an unbroken chain of entities as to each of which
50% or more of the outstanding equity securities is owned directly or
indirectly by its parent (provided, there shall not be included any such
entity the equity securities of which are owned or controlled in a
fiduciary capacity), (ii) in the case of partnerships, serves as a
general partner, (iii) in the case of a limited liability company,
serves as a managing member, or (iv) otherwise has the ability to elect
a majority of the directors, trustees or managing members thereof.
"SUPERIOR PROPOSAL" means with, respect to Company, any written
Acquisition Proposal made by a Person other than Parent or any of its
Affiliates which is for (i) (a) a merger, reorganization, consolidation,
share exchange, business combination, recapitalization, liquidation,
dissolution or similar transaction involving Company as a result of
which either (1) Company's stockholders prior to such transaction (by
virtue of their ownership of Company's shares) in the aggregate cease to
own at least 50% of the voting securities of the entity surviving or
resulting from such transaction (or the ultimate parent entity thereof)
or (2) the individuals comprising the Board of Directors of Company
prior to such transaction do not constitute a majority of the board of
directors of such ultimate parent entity, (b) a sale, lease, exchange,
transfer or other disposition of at least 50% of the assets of Company
and its Subsidiaries, taken as a whole, in a single transaction or a
series of related transactions, or (c) the acquisition, directly or
indirectly, by a Person of beneficial ownership of 25% or more of the
combined voting power of the Company Capital Stock, whether by merger,
consolidation, share exchange, business combination, tender or exchange
offer or otherwise, and (ii) which is otherwise on terms which the Board
of Directors of Company in good faith concludes (after consultation with
its financial advisors and outside counsel) that the proposal (x) would,
if consummated, result in a transaction that is more favorable to its
stockholders (in their capacities as stockholders), from a financial
point of view, than the transactions contemplated by this Agreement and
(y) is reasonably capable of being completed.
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"SURVIVING CORPORATION" shall mean Company as the surviving
corporation resulting from the Merger.
"TAX RETURN" shall mean any report, return, information return,
or other information required to be supplied to a taxing authority in
connection with Taxes, including any return of an affiliated or combined
or unitary group that includes a Party or its Subsidiaries.
"TAX" or "TAXES" shall mean any federal, state, county, local,
or foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and unemployment,
disability, real property, personal property, registration, ad valorem,
value added, alternative or add-on minimum, estimated, or other tax or
governmental fee of any kind whatsoever, imposes or required to be
withheld by the United States or any state, county, local or foreign
government or subdivision or agency thereof, including any interest,
penalties, and additions imposed thereon or with respect thereto.
"TRIGGERING EVENT" shall mean any of the following: (i) the
Board of Directors of Company or any committee thereof having authority
to bind the Board of Directors of Company shall for any reason have
withdrawn, modified or amended in any respect adverse to Parent its
approval or recommendation of this Agreement, including making a
Subsequent Determination; (ii) Company shall have failed to include in
the Proxy Statement the recommendation of the Board of Directors of
Company in favor of the adoption and approval of the Agreement; (iii)
the Board of Directors of Company fails to reaffirm its recommendation
in favor of the adoption and approval of the Agreement within 15
business days after Parent requests in writing that such recommendation
be reaffirmed at any time following the public announcement of an
Acquisition Proposal; (iv) the Board of Directors of Company or any
committee thereof having authority to bind the Board of Directors of
Company shall have approved or publicly recommended any Superior
Proposal or Acquisition Proposal from a Person other than Parent or any
of its Affiliates; (v) if Company shall have exercised a right specified
in Section 8.8 with respect to a Superior Proposal and shall, directly
or through agents or Representatives, continue discussions with any
Person (other than Parent or any of its Affiliates) concerning such
Superior Proposal for more than ten business days after the date of
receipt of such Superior Proposal; (vi) if an Acquisition Proposal that
is publicly disclosed shall have been commenced, publicly proposed or
communicated to Company which contains a proposal as to price (without
regard to whether such proposal specifies a specific price or a range of
potential prices) and Company shall not have rejected such proposal
within ten business days of its receipt or, if sooner, the date its
existence first became publicly disclosed; or (vii) Company shall have
intentionally breached in any material respect its obligations under
Section 8.8.
(b) The terms set forth below shall have the meanings ascribed
thereto on the referenced pages:
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<PAGE> 57
<TABLE>
<S> <C>
Agreement............................................................................1
Antitrust Laws......................................................................33
Certificates.........................................................................7
Closing..............................................................................2
Common Exchange Ratio................................................................4
Company..............................................................................1
Company Acquisition Agreement.......................................................32
Company Affiliates..................................................................37
Company Benefit Plans...............................................................17
Company Contracts...................................................................18
Company Equity Rights................................................................5
Company ERISA Affiliate.............................................................17
Company ERISA Plan..................................................................17
Company Intellectual Property.......................................................14
Company SEC Reports.................................................................11
Company Series G Stock..............................................................45
Company Series H Stock..............................................................45
Dissenting Stockholder...............................................................4
DOJ.................................................................................33
Effective Time.......................................................................2
Exchange Agent.......................................................................7
FTC.................................................................................33
Indemnified Party...................................................................37
Maximum Amount......................................................................38
Merger...............................................................................2
Parent...............................................................................1
Parent Benefit Plan.................................................................25
Parent ERISA Affiliate..............................................................25
Parent ERISA Plan...................................................................25
Parent Intellectual Property........................................................24
Parent SEC Reports..................................................................22
SEC.................................................................................49
Series G Exchange Ratio..............................................................4
Series H Exchange Ratio..............................................................4
Stock Option Agreement...............................................................1
Sub..................................................................................1
Subsequent Determination............................................................32
Takeover Laws.......................................................................20
Tax Opinion.........................................................................39
Termination Fee.....................................................................53
Total Profit........................................................................54
Voting Agreements....................................................................1
</TABLE>
(c) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation."
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<PAGE> 58
11.2 EXPENSES
(a) Except as otherwise provided in this Section 11.2, each of
the Parties shall bear and pay all direct costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including filing, registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment bankers,
accountants, and counsel, except that each of the Parties shall bear and pay
one-half of the filing fees payable in connection with the Registration
Statement and the Proxy Statement and printing costs incurred in connection with
the printing of the Proxy Statement.
(b) Parent and Company agree that Company shall pay to Parent
$100 million (the "Termination Fee") solely as follows:
(i) if Parent shall terminate this Agreement pursuant to Section
10.1(g);
(ii) if (x) either Party shall terminate this Agreement pursuant
to Section 10.1(d)(ii), (y) at any time after the date of this Agreement
and at or before the event giving rise to such termination there shall
exist an Acquisition Proposal and (z) within 9 months of the termination
of this Agreement, Company enters into a definitive agreement with any
third party with respect to an Acquisition Proposal or an Acquisition
Proposal is consummated; or
(iii) if (w) Parent shall terminate this Agreement pursuant to
Section 10.1(e) or either Party shall terminate this Agreement pursuant
to Section 10.1(d)(i), (x) at any time after the date of this Agreement
and at or before the time of the event giving rise to such termination
there shall exist an Acquisition Proposal, (y) following the existence
of such Acquisition Proposal and prior to any such termination, Company
shall have breached (and not promptly cured after notice thereof) any of
its covenants or agreements set forth in this Agreement in any material
respect, and (z) within 9 months of any such termination of this
Agreement, Company shall enter into a definitive agreement with any
third party with respect to an Acquisition Proposal or an Acquisition
Proposal is consummated.
(c) Any payment required to be made pursuant to Section 11.2(b)
shall be payable to Parent not later than two business days after (i) the
entering into of a definitive agreement with respect to, or the consummation of,
an Acquisition Proposal, as applicable, or (ii) a termination pursuant to
Section 10.1(g). All payments under this Section 11.2 shall be made by wire
transfer of immediately available funds to an account designated by Parent.
Company acknowledges that the agreements contained in Section 11.2(b) are an
integral part of the transactions contemplated by this Agreement and, except as
provided in subsection (e) below, constitute liquidated damages and not a
penalty, and that, without these agreements, Parent would not enter into this
Agreement; accordingly, if Company fails promptly to pay the amounts due
pursuant to Section 11.2(b), and, in order to obtain such payment, Parent
commences a suit which results in a judgment against Company for the amounts set
forth in Section 11.2(b), Company shall pay to Parent its reasonable costs and
expenses (including attorneys' fees and expenses) in connection with such suit,
together with interest on the amounts
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set forth in Section 11.2(b) at the prime rate of Citibank, N.A. in effect on
the date such payment was required to be made.
(d) Notwithstanding any provision of this Agreement to the
contrary, in no event shall Parent's "Total Profit" (as defined in the Stock
Option Agreement) plus any Termination Fee exceed in the aggregate $114 million
(the "Limitation Amount"), and, if the total amount that would otherwise be
received by Parent would exceed the Limitation Amount, Parent, at its sole
election, shall take such of the actions provided in Section 12(a) of the Stock
Option Agreement to ensure that Parent's actually realized Total Profit, when
aggregated with the Termination Fee actually paid to Parent, shall not exceed
the Limitation Amount after taking into account such actions.
(e) Nothing contained in this Section 11.2 shall constitute or
shall be deemed to constitute liquidated damages for the willful and material
breach by a Party of the terms of Sections 8.1 or 8.8 or otherwise limit the
rights of the nonbreaching Party.
11.3 BROKERS AND FINDERS
Except for Prudential Securities, Inc. as to Company and except for
Donaldson, Lufkin & Jenrette Securities Corporation and Morgan Stanley & Co.
Incorporated as to Parent, each of the Parties represents and warrants that
neither it nor any of its officers, directors, employees, or Affiliates has
employed any broker or finder or incurred any Liability for any financial
advisory fees, investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the transactions contemplated
hereby. In the event of a claim by any broker or finder based upon his or its
representing or being retained by or allegedly representing or being retained by
Company or by Parent, each of Company and Parent, as the case may be, agrees to
indemnify and hold the other Party harmless of and from any Liability in respect
of any such claim.
11.4 ENTIRE AGREEMENT
Except as otherwise expressly provided herein, this Agreement (including
the documents and instruments referred to herein) constitutes the entire
agreement between the Parties with respect to the transactions contemplated
hereunder and supersedes all prior arrangements or understandings with respect
thereto, written or oral (except, as to Section 8.6(b), for the Confidentiality
Agreement). Nothing in this Agreement expressed or implied, is intended to
confer upon any Person, other than the Parties or their respective successors,
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, other than as provided in Sections 8.13 and 8.14.
11.5 AMENDMENTS
To the extent permitted by Law, this Agreement may be amended by a
subsequent writing signed by each of the Parties upon the approval of each of
the Parties, whether before or after stockholder approval of this Agreement has
been obtained; provided, that after any such approval by the holders of Company
Common Stock, there shall be made no amendment that pursuant to Section 251 of
the DGCL requires further approval by such stockholders without the further
approval of such stockholders.
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11.6 WAIVERS
(a) Prior to or at the Effective Time, Parent, acting through
its Board of Directors, chief executive officer or other authorized officer,
shall have the right to waive any Default in the performance of any term of this
Agreement by Company, to waive or extend the time for the compliance or
fulfillment by Company of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of Parent
under this Agreement, except any condition which, if not satisfied, would result
in the violation of any Law. No such waiver shall be effective unless in writing
signed by a duly authorized officer of Parent.
(b) Prior to or at the Effective Time, Company, acting through
its Board of Directors, chief executive officer or other authorized officer,
shall have the right to waive any Default in the performance of any term of this
Agreement by Parent, to waive or extend the time for the compliance or
fulfillment by Parent of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of
Company under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No such waiver shall be effective
unless in writing signed by a duly authorized officer of Company.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
11.7 ASSIGNMENT
Except as expressly contemplated hereby, neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any Party
hereto (whether by operation of Law or otherwise) without the prior written
consent of the other Party. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the Parties
and their respective successors and assigns.
11.8 NOTICES
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered by hand, by facsimile
transmission with hard copy to follow, by registered or certified mail, return
receipt requested, postage pre-paid, or by courier or overnight carrier, to the
persons at the addresses set forth below (or at such other address as may be
provided hereunder), and shall be deemed to have been delivered as of the date
so delivered:
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<PAGE> 61
Company: InterVU Inc.
6815 Flanders Drive
San Diego, California 92121
Telecopy Number: (858) 623-2324
Attention: Kevin Sagara, General Counsel
Copy to Counsel: Latham & Watkins
701 "B" Street
Suite 2100
San Diego, California 92101
Telecopy Number: (619) 696-7419
Attention: David A. Hahn
Parent: Akamai Technologies, Inc.
201 Broadway
Cambridge, Massachusetts 02139
Telecopy Number: (617) 250-3694
Attention: Robert O. Ball III, General Counsel
Copy to Counsel: Alston & Bird LLP
601 Pennsylvania Avenue, N.W.
North Building, 11th Floor
Washington, DC 20004
Telecopy Number: (202) 756-3333
Attention: David E. Brown, Jr.
11.9 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
Laws of the State of Delaware, without regard to any applicable conflicts of
Laws.
11.10 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
11.11 CAPTIONS; ARTICLES AND SECTIONS
The captions contained in this Agreement are for reference purposes only
and are not part of this Agreement. Unless otherwise indicated, all references
to particular Articles or Sections shall mean and refer to the referenced
Articles and Sections of this Agreement.
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<PAGE> 62
11.12 INTERPRETATIONS
Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against any party, whether under any rule of construction
or otherwise. No party to this Agreement shall be considered the draftsman. The
parties acknowledge and agree that this Agreement has been reviewed, negotiated,
and accepted by all parties and their attorneys and shall be construed and
interpreted according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties hereto.
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<PAGE> 63
11.13 ENFORCEMENT OF AGREEMENT
The Parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It is accordingly
agreed that the Parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
11.14 SEVERABILITY
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf by its duly authorized officers as of the day and year
first above written.
Akamai Technologies, Inc.
By: /s/ PAUL SAGAN
---------------------------------
President
ALII Merger Corporation
By: /s/ ROBERT O. BALL, III
---------------------------------
President
InterVU Inc.
By: /s/ HARRY E. GRUBER
---------------------------------
Chief Executive Officer
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<PAGE> 1
EXHIBIT 2.1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into
as of February 6, 2000, by and between InterVU Inc., a Delaware corporation
("Issuer"), and Akamai Technologies, Inc., a Delaware corporation ("Grantee").
WHEREAS, Grantee and Issuer have entered into that certain Agreement and
Plan of Merger, dated as of February 6, 2000 (the "Merger Agreement"), providing
for, among other things, the merger of a wholly owned Subsidiary of Grantee with
and into Issuer, with Issuer as the surviving entity; and
WHEREAS, as a condition and inducement to Grantee's execution of the
Merger Agreement, Grantee has required that Issuer agree, and Issuer has agreed,
to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements set forth herein and in the Merger
Agreement, and intending to be legally bound hereby, Issuer and Grantee agree as
follows:
1. DEFINED TERMS. Capitalized terms which are used but not defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
2. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 3,102,592 shares (as adjusted as set forth herein, the "Option
Shares") of common stock, $.001 par value per share ("Issuer Common Stock"), of
Issuer at a purchase price per Option Share (subject to adjustment as set forth
herein, the "Purchase Price") equal to $117.00.
3. EXERCISE OF OPTION.
(a) Holder may exercise the Option, in whole or in part, at any
time and from time to time following the date on which Grantee becomes
unconditionally entitled to receive the Termination Fee pursuant to Section
11.2(b) of the Merger Agreement (the "Exercise Date") and prior to the
Expiration Date (as defined below); provided that Grantee is not on the Exercise
Date or the Closing Date (as defined below) in material breach of its
obligations under this Agreement or the Merger Agreement; and provided further,
that any purchase of shares upon exercise of the Option shall be subject to
compliance with applicable Law. The rights set forth in Section 8 shall
terminate when the right to exercise the Option terminates (other than as a
result of a complete exercise of the Option) as set forth herein; provided, that
notwithstanding the termination of the Option, Grantee shall be entitled to
purchase those Option Shares with respect to which an Option Notice is given
prior to the Expiration Date, and the termination of the Option will not affect
any rights hereunder which by their terms do not terminate or expire prior to or
at the Expiration Date.
<PAGE> 2
(b) The term "Expiration Date" shall be the date of the earliest
to occur of (A) the Effective Time, (B) nine months after the first occurrence
of an Exercise Date, and (C) the date of termination of the Merger Agreement,
unless, in the case of this clause (C), Grantee has the right to receive the
Termination Fee either (x) upon or (y) following such termination upon the
occurrence of certain events, in which case the Option will not terminate until
the later of (x) 15 business days following the time the Termination Fee becomes
unconditionally payable and (y) the expiration of the period in which Grantee
has such right to receive the Termination Fee. The term "Holder" shall mean the
holder or holders of the Option from time to time, and which initially is the
Grantee. The term "person" shall have the meaning specified in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act.
(c) In the event Holder wishes to exercise the Option, it shall
send to Issuer a written notice (the "Option Notice") specifying (i) the total
number of Option Shares it intends to purchase pursuant to such exercise and
(ii) a place and date not earlier than three business days nor later than 15
business days from the date of the Option Notice (the "Notice Date") for the
closing (the "Closing") of such purchase (the "Closing Date"); provided, that
the Closing shall be held only if (i) such purchase would not otherwise violate
or cause the violation of, any applicable material Law (including the HSR Act)
and (ii) no material Orders shall have been promulgated, enacted, entered into,
or enforced by any Regulatory Authority which prohibits delivery of the Option
Shares, whether temporary, preliminary or permanent; provided, however, that the
parties hereto shall use their reasonable best efforts to (x) promptly make and
process all necessary filings and applications and obtain all Consents and to
comply with any such applicable Laws and (y) have any such Order vacated or
reversed. In the event the Closing is delayed pursuant to clause (i) or (ii)
above, the Closing shall be within ten Business Days following the cessation of
such restriction, violation, Law or Order or the receipt of any necessary
Consent, as the case may be (so long as the Option Notice was delivered prior to
the Expiration Date); provided further that, notwithstanding any prior Option
Notice, Grantee shall be entitled to rescind such Option Notice and shall not be
obligated to purchase any Option Shares in connection with such exercise upon
written notice to such effect to Issuer.
4. PAYMENT AND DELIVERY OF CERTIFICATES.
(a) On each Closing Date, Holder shall (i) pay to Issuer, in
immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of Option
Shares to be purchased on such Closing Date, and (ii) present and surrender this
Agreement to the Issuer at the address of the Issuer specified in Section 13(f)
hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 4(a), (i) Issuer shall deliver to Holder (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever and subject to no pre-emptive rights, and
(B) if the Option is exercised in part only, an executed new agreement with the
same terms as this Agreement evidencing the right to purchase the balance of the
shares of Issuer Common Stock purchasable hereunder, and (ii) Holder shall
deliver to Issuer a letter agreeing that Holder shall not offer to
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<PAGE> 3
sell or otherwise dispose of such Option Shares in violation of applicable
federal and state law or of the provisions of this Agreement.
(c) In addition to any other legend that is required by
applicable law, certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF FEBRUARY
6, 2000. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF
WITHOUT CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the reference to restrictions pursuant to
this Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such legend if such Option Shares have been registered
pursuant to the Securities Act, such Option Shares have been sold in reliance on
and in accordance with Rule 144 under the Securities Act, or Holder shall have
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act and (ii) the reference to restrictions pursuant to this Agreement
in the above legend will be removed by delivery of substitute certificate(s)
without such reference if the Option Shares evidenced by certificate(s)
containing such reference have been sold or transferred in compliance with the
provisions of this Agreement under circumstances that do not require the
retention of such reference.
5. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals referred to
herein, to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Issuer. This Agreement has
been duly executed and delivered by Issuer. The execution and delivery
of this Agreement, the consummation of the transactions contemplated
hereby and compliance by Issuer with any of the provisions hereof will
not (i) conflict with or result in a breach of any provision of its
Certificate of Incorporation or Bylaws or a default (or give rise to any
right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, bond, debenture, mortgage,
indenture, license, material agreement or other material instrument or
obligation to which Issuer is bound, or (ii) violate any order, writ,
injunction, or decree applicable to Issuer or any of its properties or
assets. No Consent by any governmental or regulatory agency or
authority, other than compliance with applicable federal and state
securities laws and the HSR Act, is required of Issuer in
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<PAGE> 4
connection with the execution and delivery by Issuer of this Agreement
or the consummation by Issuer of the transactions contemplated hereby.
(b) Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and, at all times from
the date hereof until the obligation to deliver Issuer Common Stock upon
the exercise of the Option terminates, will have reserved for issuance,
upon exercise of the Option, the number of shares of Issuer Common Stock
necessary for Holder to exercise the Option. The shares of Issuer Common
Stock to be issued upon due exercise of the Option, including all
additional shares of Issuer Common Stock or other securities which may
be issuable pursuant to Section 7, upon issuance pursuant hereto, shall
be duly and validly issued, fully paid, and nonassessable, and shall be
delivered free and clear of all liens, claims, charges, and encumbrances
of any kind or nature whatsoever, including any preemptive rights of any
stockholder of Issuer.
(c) Issuer has taken all action required under the provisions of
Section 203 of the Delaware General Corporation Law to make the
provisions of Section 203 inapplicable to, and to ensure that Grantee
shall not become an "interested stockholder" within the meaning of
Section 203 by reason of, the grant or any exercise of the Option or any
right under this Agreement. No provision of the Certificate of
Incorporation or Bylaws of Issuer or any agreement to which Issuer is a
party (i) would or would purport to impose restrictions which might
adversely affect or delay the consummation of the transactions
contemplated by this Agreement, or (ii) as a result of the consummation
of the transactions contemplated by this Agreement, (x) would or would
purport to restrict or impair the ability of Grantee to vote or
otherwise exercise the rights of a stockholder with respect to
securities of Issuer or any of its Subsidiaries that may be acquired or
controlled by Grantee or (y) would or would purport to entitle any
Person to acquire securities of Issuer or Grantee.
6. REPRESENTATIONS AND WARRANTS OF GRANTEE. Grantee hereby
represents and warrants to Issuer that:
(a) Grantee has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals or consents
referred to herein, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Grantee. This Agreement has
been duly executed and delivered by Grantee.
(b) This Option is not being, and any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be,
acquired with a view to the public distribution thereof and will not be
transferred or otherwise disposed of except in a transaction registered
or exempt from registration under the Securities Laws.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
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(a) In the event of any change in Issuer Common Stock by reason
of a stock dividend, stock split, split-up, recapitalization, combination,
exchange of shares or similar transaction, the type and number of shares or
securities subject to the Option, and the Purchase Price therefor, shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transaction so that Holder shall receive, upon exercise of the
Option, the number and class of shares or other securities or property that
Holder would have received in respect of Issuer Common Stock if the Option had
been exercised immediately prior to such event, or the record date therefor, as
applicable. If any additional shares of Issuer Common Stock are issued after the
date of this Agreement (other than pursuant to an event described in the first
sentence of this Section 7(a)), the number of shares of Issuer Common Stock
subject to the Option shall be adjusted so that, after such issuance, it,
together with any shares of Issuer Common Stock previously issued pursuant
hereto, equals 19.9% of the number of shares of Issuer Common Stock then issued
and outstanding, without giving effect to any shares subject to or issued
pursuant to the Option.
(b) In the event that Issuer shall enter into an agreement: (i)
to consolidate with or merge into any person, other than Grantee or one of its
Subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger; (ii) to permit any person, other than Grantee or one of
its Subsidiaries, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the then outstanding
shares of Issuer Common Stock shall be changed into or exchanged for stock or
other securities of Issuer or any other person or cash or any other property or
the outstanding shares of Issuer Common Stock immediately prior to such merger
shall after such merger represent less than 50% of the outstanding shares and
share equivalents of the merged company; or (iii) to sell or otherwise transfer
all or substantially all of its Assets to any person, other than Grantee or one
of its Subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provisions so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, Holder shall receive for each Option Share with respect to which the
Option has not been exercised an amount of consideration in the form of and
equal to the per share amount of consideration that would be received by the
holder of one share of Issuer Common Stock less the Purchase Price (and, in the
event of an election or similar arrangement with respect to the type of
consideration to be received by the holders of Issuer Common Stock, subject to
the foregoing, proper provision shall be made so that Holder would have the same
election or similar rights as would the holder of the number of shares of Issuer
Common Stock for which the Option is then exercisable).
(c) Issuer shall give Grantee at least ten days' prior written
notice before setting the record date for determining the holders of record of
shares of Company Common Stock entitled to notice of, or to vote on, any matter,
to receive any dividend or distribution or to participate in any rights offering
or make any election or any other matter, or to receive any other benefit or
right, with respect to shares of Company Common Stock. Any failure to give any
such notice, however, shall not affect the legality or validity of any such
action.
(d) Issuer shall not enter into any transaction described in
subsection (b) of this Section 7 unless the other party thereto assumes in
writing all the obligations of Issuer hereunder and take all other actions that
may be necessary so that the provisions of this Section 7
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<PAGE> 6
are given full force and effect (including, without limitation, an agreement by
such other party to provide the funding required for Issuer to pay the
Repurchase Consideration).
8. REPURCHASE AT THE OPTION OF HOLDER.
(a) Subject to Section 12, at any time on or after the Exercise
Date and prior to the Expiration Date, Grantee shall have the right (the
"Repurchase Right") to require Issuer to repurchase from Grantee the Option and
all shares of Issuer Common Stock purchased by Grantee pursuant hereto with
respect to which Grantee then has beneficial ownership. Such repurchase shall be
at an aggregate price (the "Repurchase Consideration") equal to the sum of:
(i) the aggregate Purchase Price paid by Holder for any
shares of Issuer Common Stock acquired by Holder pursuant to the Option
with respect to which Holder then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as
defined below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7), multiplied
by the number of shares of Issuer Common Stock with respect to which the
Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price over the
Purchase Price (subject to adjustment pursuant to Section 7) paid (or,
in the case of Option Shares with respect to which the Option has been
exercised but the Closing Date has not occurred, payable) by Holder for
each share of Issuer Common Stock with respect to which the Option has
been exercised and with respect to which Holder then has beneficial
ownership, multiplied by the number of such shares.
(b) Grantee shall exercise its Repurchase Right by delivering to
Issuer written notice (a "Repurchase Notice") stating that Grantee elects to
require Issuer to repurchase all or a portion of the Option and/or the Option
Shares as specified therein. The closing of the Repurchase Right (the
"Repurchase Closing") shall take place in the United States at the place, time
and date specified in the Repurchase Notice, which date shall not be less than
two Business Days nor more than ten Business Days from date of the Repurchase
Notice (the "Request Date"). At the Repurchase Closing, subject to the receipt
of a writing evidencing the surrender of the Option and/or certificates
representing Option Shares, as the case may be, Issuer shall pay the Repurchase
Consideration to Holder in immediately available funds (or the portion thereof
that Issuer is not then prohibited under applicable Law from so delivering) and
if the Option is repurchased only in part, Issuer and Grantee shall execute and
deliver an amendment to this Agreement reflecting the Option Shares for which
the Option is not being repurchased.
(c) To the extent that Issuer is prohibited under applicable Law
from repurchasing the portion of the Option or the Option Shares designated in
such Repurchase Notice, Issuer shall immediately so notify Grantee and
thereafter deliver, from time to time, to Grantee the portion of the Repurchase
Consideration, respectively, that it is no longer prohibited from delivering,
within five Business Days after the date on which Issuer is no longer so
prohibited; provided, however, that if Issuer at any time after delivery of a
Repurchase Notice is
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<PAGE> 7
prohibited under applicable Law from delivering to Grantee the full amount of
the Repurchase Consideration for the Option or Option Shares to be repurchased,
Grantee may rescind the exercise of the Repurchase Right, whether in whole, in
part or to the extent of the prohibition, and, to the extent rescinded, no part
of the amounts, terms or the rights with respect to the Option or Repurchase
Right shall be changed or affected as if such Repurchase Right were not
exercised. Issuer shall use its reasonable best efforts to obtain all required
regulatory and legal approvals and to file any required notices to permit
Grantee to exercise its Repurchase Right and shall use its reasonable best
efforts to avoid or cause to be rescinded or rendered inapplicable any
prohibition on Issuer's repurchase of the Option or the Option Shares.
(d) For purposes of this Agreement, the "Applicable Price" means
the greater of (i) the price per share of Issuer Common Stock received by
holders of Issuer Common Stock in connection with any merger or other business
combination transaction described in Section 7(b) or (ii) the average of the
closing sales prices per share of Issuer Common Stock quoted on the Nasdaq
National Market (or if Issuer Common Stock is not quoted on the Nasdaq National
Market, the highest bid price per share as quoted on the principal trading
market or securities exchange on which such shares are traded as reported by a
recognized source chosen by Holder) for the ten business days preceding the
Request Date; provided, that in the event of a sale of less than all of Issuer's
Assets, the Applicable Price shall be the sum of the price paid in such sale for
such assets and the current market value of the remaining assets of Issuer as
determined by an independent nationally recognized investment banking firm
selected by mutual agreement of Issuer and Holder (which determination shall be
conclusive for all purposes of this Agreement), divided by the number of shares
of the Issuer Common Stock outstanding at the time of such sale. If the
consideration to be offered, paid or received pursuant to either of the
foregoing clause (i) shall be other than in cash, the value of such
consideration shall be determined in good faith by an independent nationally
recognized investment banking firm selected by mutual agreement of Issuer and
Holder, which determination shall be conclusive for all purposes of this
Agreement.
9. REGISTRATION RIGHTS.
(a) Issuer shall, subject to the conditions of subparagraph (c)
below, if requested by any Holder, including Grantee and any permitted
transferee ("Selling Holder"), as expeditiously as possible prepare and file a
registration statement under the Securities Laws if necessary in order to permit
the sale or other disposition of any or all shares of Issuer Common Stock that
have been acquired by Selling Holder upon exercise of the Option in accordance
with the intended method of sale or other disposition stated by Selling Holder
in such request, including, without limitation, a "shelf" registration statement
under Rule 415 under the Securities Act or any successor provision, and Issuer
shall use its reasonable best efforts to qualify such shares or other securities
for sale under any applicable state securities laws.
(b) If Issuer at any time after the exercise of the Option
proposes to register any shares of Issuer Common Stock under the Securities Laws
in connection with an underwritten public offering of such Issuer Common Stock,
Issuer will promptly give written notice to Holder of its intention to do so
and, upon the written request of Holder given within ten days after receipt of
any such notice (which request shall specify the number of shares of Issuer
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<PAGE> 8
Common Stock intended to be included in such underwritten public offering by
Selling Holder), Issuer will cause all such shares, the holders of which shall
have requested participation in such registration, to be so registered and
included in such underwritten public offering; provided, that Issuer may elect
to not cause any such shares to be so registered (i) if the underwriters in good
faith object for valid business reasons, or (ii) in the case of a registration
solely to implement a dividend reinvestment or similar plan, an employee benefit
plan or a registration filed on Form S-4 or any successor form, or a
registration filed on a form which does not permit registrations of resales;
provided, further, that such election pursuant to clause (i) may only be made
two times. If some but not all the shares of Issuer Common Stock, with respect
to which Issuer shall have received requests for registration pursuant to this
subparagraph (b), shall be excluded from such registration, Issuer shall make
appropriate allocation of shares to be registered among Selling Holders and any
other person (other than Issuer or any person exercising demand registration
rights in connection with such registration) who or which is permitted to
register their shares of Issuer Common Stock in connection with such
registration pro rata in the proportion that the number of shares requested to
be registered by each Selling Holder bears to the total number of shares
requested to be registered by all persons then desiring to have Issuer Common
Stock registered for sale.
(c) Issuer shall use all reasonable efforts to cause each
registration statement referred to in subparagraph (a) above to become effective
and to obtain all consents or waivers of other parties which are required
therefor and to keep such registration statement effective, provided, that
Issuer may delay any registration of Option Shares required pursuant to
subparagraph (a) above for a period not exceeding 90 days provided Issuer shall
in good faith determine that any such registration would require premature
disclosure of any material corporate development or otherwise interfere with or
adversely affect an offering or contemplated offering of other securities by
Issuer, and Issuer shall not be required to register Option Shares under the
Securities Laws pursuant to subparagraph (a) above:
(i) on more than two occasions;
(ii) more than once during any calendar year; and
(iii) within 90 days after the effective date of a
registration referred to in subparagraph (b) above pursuant to which the
Selling Holders concerned were afforded the opportunity to register such
shares under the Securities Laws and such shares were registered as
requested.
In addition to the foregoing, Issuer shall not be required
to maintain the effectiveness of any registration statement after the expiration
of 90 days from the effective date of such registration statement. Issuer shall
use all reasonable efforts to make any filings, and take all steps, under all
applicable state securities laws to the extent necessary to permit the sale or
other disposition of the Option Shares so registered in accordance with the
intended method of distribution for such shares, provided, that Issuer shall not
be required to consent to general jurisdiction or qualify to do business in any
state where it is not otherwise required to so consent to such jurisdiction or
to so qualify to do business. The obligations of Issuer under subsections
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<PAGE> 9
(a) and (b) above shall terminate with respect to a Holder's Option Shares at
such time as such Holder may sell all such Option Shares without restriction
under Rule 144(k).
(d) Except where applicable state law prohibits such payments,
Issuer will pay all expenses (including without limitation registration fees,
qualification fees, blue sky fees and expenses (including the fees and expenses
of counsel), accounting expenses, legal expenses including the reasonable fees
and expenses of one counsel to the Selling Holders, and printing expenses in
connection with each registration pursuant to subparagraph (a) or (b) above
(including the related offerings and sales by Selling Holders) and all other
qualifications, notifications or exemptions pursuant to subparagraph (a) or (b)
above. Underwriting discounts and commissions relating to Option Shares, fees
and disbursements of counsel to the Selling Holders and any other expenses
incurred by such Selling Holders in connection with any such registration shall
be borne by such Selling Holders.
(e) In connection with any registration under subparagraph (a) or
(b) above Issuer hereby indemnifies the Selling Holders, and each underwriter
thereof, if any, including each person, if any, who controls such Selling Holder
or underwriter within the meaning of Section 15 of the Securities Act, against
all expenses, losses, claims, damages and liabilities caused by any untrue, or
alleged untrue, statement of a material fact contained in any registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission, or alleged omission, to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such expenses, losses, claims, damages or liabilities of such
indemnified party are caused by any untrue statement or alleged untrue statement
that was included by Issuer in any such registration statement or prospectus or
notification or offering circular (including any amendments or supplements
thereto) in reliance upon and in conformity with, information furnished in
writing to Issuer by such indemnified party expressly for use therein, and
Issuer and each officer, director and controlling person of Issuer shall be
indemnified by such Selling Holder, or by such underwriter, as the case may be,
for all such expenses, losses, claims, damages and liabilities caused by any
untrue, or alleged untrue, statement, that was included by Issuer in any such
registration statement or prospectus or notification or offering circular
(including any amendments or supplements thereto) in reliance upon, and in
conformity with, information furnished in writing to Issuer by such holder or
such underwriter, as the case may be, expressly for such use.
Promptly upon receipt by a party indemnified under this
subparagraph (e) of notice of the commencement of any action against such
indemnified party in respect of which indemnity or reimbursement may be sought
against any indemnifying party under this subparagraph (e), such indemnified
party shall notify the indemnifying party in writing of the commencement of such
action, but the failure so to notify the indemnifying party shall not relieve it
of any liability which it may otherwise have to any indemnified party under this
subparagraph (e). In case notice of commencement of any such action shall be
given to the indemnifying party as above provided, the indemnifying party shall
be entitled to participate in and, to the extent it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and satisfactory to such
indemnified party. The indemnified party shall have the right to employ separate
counsel
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<PAGE> 10
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall be
paid by the indemnified party unless (i) the indemnifying party either agrees to
pay the same, (ii) the indemnifying party falls to assume the defense of such
action with counsel' satisfactory to the indemnified party, or (iii) the
indemnified party has been advised by counsel that one or more legal defenses
may be available to the indemnifying party that may be contrary to the interest
of the indemnified party, in which case the indemnifying party shall be entitled
to assume the defense of such action notwithstanding its obligation to bear fees
and expenses of such counsel. No indemnifying party shall be liable for any
settlement entered into without its consent, which consent may not be
unreasonably withheld.
If the indemnification provided for in this subparagraph
(e) is unavailable to a party otherwise entitled to be indemnified in respect of
any expenses, losses, claims, damages or liabilities referred to herein, then
the indemnifying party, in lieu of indemnifying such party otherwise entitled to
be indemnified, shall contribute to the amount paid or payable by such party to
be indemnified as a result of such expenses, losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by Issuer, all selling stockholders and the underwriters from
the offering of the securities and also the relative fault of Issuer, all
selling stockholders and the underwriters in connection with the statements or
omissions which resulted in such expenses, losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The amount
paid or payable by a party as a result of the expenses, losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim; provided, that in no case shall
any Selling Holder be responsible, in the aggregate, for any amount in excess of
the net offering proceeds attributable to its Option Shares included in the
offering. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Any
obligation by any holder to indemnify shall be several and not joint with other
holders.
(f) Issuer shall comply with all reporting requirements and will
do all such other things as may be necessary to permit the expeditious sale at
any time of any Option Shares by Holder in accordance with and to the extent
permitted by any rule or regulation promulgated by the SEC from time to time,
including, without limitation, Rules 144 and 144A. Issuer shall at its expense
provide Holder with any information necessary in connection with the completion
and filing of any reports or forms required to be filed by them under the
Securities Laws, or required pursuant to any state securities laws or the rules
of any stock exchange.
(g) Issuer will pay all stamp taxes in connection with the
issuance and the sale of the Option Shares and in connection with the exercise
of the Option, and will save Holder harmless, without limitation as to time,
against any and all liabilities, with respect to all such taxes.
10. QUOTATION; LISTING. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then authorized for
quotation or trading or listing on the Nasdaq National Market or any national
securities exchange or other automated quotations
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<PAGE> 11
system maintained by a self-regulatory organization, Issuer, upon the request of
Holder, will promptly file a notification of additional listing or an
application, if required, to authorize for quotation or trading or listing the
shares of Issuer Common Stock or other securities to be acquired upon exercise
of the Option on the Nasdaq National Market or any national securities exchange
or other automated quotations system maintained by a self-regulatory
organization and will use its best efforts to obtain approval, if required, of
such quotation or listing as soon as practicable.
11. DIVISION OF OPTION. This Agreement (and the Option granted
hereby) are exchangeable, without expense, at the option of Holder, upon
presentation and surrender of this Agreement at the principal office of Issuer
for other Agreements providing for Options of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Issuer Common Stock purchasable hereunder. The terms "Agreement" and "Option" as
used herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft, destruction
or mutilation of this Agreement, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender and cancellation
of this Agreement, if mutilated, Issuer will execute and deliver a new Agreement
of like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
12. TOTAL PROFIT.
(a) Notwithstanding any other provision of this Agreement, in no
event shall Grantee's Total Profit (as hereinafter defined) plus any Termination
Fee paid pursuant to Section 11.2(b) of the Merger Agreement exceed in the
aggregate $114 million (the "Limitation Amount"), and, if the total amount that
would otherwise be received by Grantee otherwise would exceed the Limitation
Amount, Grantee, at its sole election, shall either (i) reduce the number of
shares of Issuer Common Stock subject to this Option, (ii) deliver to Issuer for
cancellation Option Shares previously purchased by Grantee, (iii) reduce the
amount of the Repurchase Consideration, (iv) pay cash to Issuer, or (v) any
combination of the foregoing, so that Grantee's actually realized Total Profit,
when aggregated with the Termination Fee actually paid to Grantee, shall not
exceed the Limitation Amount after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of Option Shares as would, as of the
date of exercise, result in a Notional Total Profit (as defined below) which,
together with the Termination Fee theretofore paid to Grantee, would exceed the
Limitation Amount; provided, that nothing in this sentence shall restrict any
exercise of the Option permitted hereby on any subsequent date.
(c) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) the amount received by
Grantee pursuant to Issuer's repurchase of the Option (or any portion thereof)
pursuant to Section 8, (ii) (x) the amount received by Grantee pursuant to
Issuer's repurchase of Option Shares pursuant to Section 8, less
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<PAGE> 12
(y) Grantee's Purchase Price for such Option Shares, (iii) (x) the net cash
amounts received by Grantee pursuant to any consummated arm's-length sales of
Option Shares (or any other securities into which such Option Shares are
converted or exchanged) to any unaffiliated party, less (y) Grantee's Purchase
Price of such Option Shares.
(d) As used herein, the term "Notional Total Profit" with respect
to any number of Option Shares as to which Grantee may propose to exercise the
Option shall be the Total Profit determined as of the date of such proposal
assuming that the Option was exercised on such date for such number of Option
Shares and assuming that such Option Shares, together with all other Option
Shares held by Grantee and its affiliates as of such date, were sold for cash at
the closing market price (less customary brokerage commissions) for shares of
Issuer Common Stock on the preceding trading day on the Nasdaq National Market
(or on any other national securities exchange or automated trading or quotations
system on which shares of Issuer Common Stock are then so listed or traded).
13. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in Section 10, each of
the parties hereto shall bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
(b) WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY.
This Agreement, together with the Merger Agreement and the other documents and
instruments referred to herein and therein, between Grantee and Issuer (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) is not intended to confer upon any person other
than the parties hereto (other than any transferees of the Option Shares or any
permitted transferee of this Agreement pursuant to Section 13(h)) any rights or
remedies hereunder. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or a federal or state
governmental or regulatory agency or authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If for any reason such court or
regulatory agency determines that the Option does not permit Holder to acquire,
or does not require Issuer to repurchase, the full number of shares of Issuer
Common Stock as provided in Sections 3 and 8 (as adjusted pursuant to Section
7), it is the express intention of Issuer to allow Holder to acquire or to
require Issuer to repurchase such lesser number of shares as may be permissible
without any amendment or modification hereof.
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<PAGE> 13
(d) GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law rules.
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(with confirmation) or mailed by registered or certified mail (return receipt
requested) to the parties at the addresses set forth in the Merger Agreement(or
at such other address for a party as shall be specified by like notice).
(g) COUNTERPARTS. This Agreement and any amendments hereto may be
executed in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed, it
being understood that both parties need not sign the same counterpart.
(h) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder or under the Option shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other party, except that Grantee may assign this
Agreement to a wholly owned Subsidiary of Grantee in whole or in part. Subject
to the preceding sentence, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
(i) FURTHER ASSURANCES. In the event of any exercise of the
Option by Holder, Issuer and Holder shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
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<PAGE> 14
(j) SPECIFIC PERFORMANCE. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
INTERVU INC.
By: /s/ HARRY E. GRUBER
--------------------------
AKAMAI TECHNOLOGIES, INC.
By: /s/ PAUL SAGAN
--------------------------
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<PAGE> 1
EXHIBIT 2.3
FORM OF STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of February 6, 2000, by and between Akamai Technologies, Inc., a
Delaware corporation ("Parent"), and the undersigned (the "Stockholder").
WHEREAS, the Stockholder desires that Parent, Alii Merger Corporation, a
wholly owned subsidiary of Parent ("Sub"), and InterVU Inc., a Delaware
corporation ("Company") enter into an Agreement and Plan of Merger dated the
date hereof (as the same may be amended or supplemented, the "Merger Agreement")
with respect to the merger of Sub with and into Company (the "Merger"); and
WHEREAS, the Stockholder is executing this Agreement as an inducement to
Parent to enter into and execute, and to cause Sub to enter into and execute,
the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Stockholder represents and
warrants to Parent as follows:
(a) The Stockholder is the record and beneficial owner of the
number of shares (such "Stockholder's Shares") of common stock, $.001
par value, of Company ("Company Common Stock"), Series G convertible
preferred stock, $.001 par value, of Company ("Company Series G Stock"),
and Series H convertible preferred stock, $.001 par value, of Company
("Company Series H Stock" and, together with the Company Common Stock
and Company Series G Stock, the "Company Stock") set forth below such
Stockholder's name on the signature page hereof. Except for the
Stockholder's Shares and any other shares of Company Stock subject
hereto, the Stockholder is not the record or beneficial owner of any
shares of Company Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement
of, the Stockholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is a party or bound or
to which the Stockholder's Shares are subject. If the Stockholder is
married and the Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person in accordance with its terms.
Consummation by the Stockholder of the transactions contemplated hereby
will not violate, or require any consent, approval, or notice under,
<PAGE> 2
any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Stockholder or the Stockholder's Shares.
(c) The Stockholder's Shares and the certificates representing
such Shares are now, and at all times during the term hereof will be,
held by the Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder.
(e) The Stockholder understands and acknowledges that Parent is
entering into, and causing Sub to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement. The Stockholder acknowledges that the irrevocable proxy set
forth in Section 4 is granted in consideration for the execution and
delivery of the Merger Agreement by Parent and Sub.
2. Voting Agreements.
(a) The Stockholder agrees with, and covenants to, Parent that,
at any meeting of stockholders of Company called to vote upon the Merger and the
Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote with respect to the Merger and the Merger Agreement is sought
(the "Stockholders' Meeting"), the Stockholder shall appear, or cause the holder
of record on any applicable record date (the "Record Holder") to appear, for the
purpose of obtaining a quorum at the Stockholders' Meeting, and vote (or cause
the Record Holder to vote) the Stockholder's Shares in favor of the Merger, the
adoption of the Merger Agreement, and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement, provided that
the terms of the Merger Agreement shall not have been amended to reduce the
consideration payable in the Merger to a lesser amount of Parent Common Stock.
(b) At any meeting of stockholders of Company or at any
adjournment thereof or in any other circumstances upon which their vote is
sought, the Stockholder shall vote (or cause to be voted) such Stockholder's
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by Company or (ii) any amendment of Company's Certificate of Incorporation
or Bylaws or other proposal or transaction involving Company or any of its
subsidiaries which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
-2-
<PAGE> 3
3. Covenants. The Stockholder agrees with, and covenants to, Parent as
follows:
(a) If the Merger is consummated, the Stockholder's Shares
shall, pursuant to the terms of the Merger Agreement, be exchanged for
the consideration provided in the Merger Agreement. The Stockholder
hereby waives any rights of appraisal, or rights to dissent from the
Merger, that such Stockholder may have.
(b) The Stockholder shall not, nor shall it permit any
investment banker, attorney or other adviser or representative of the
Stockholder to, directly or indirectly, (i) solicit, initiate or
encourage the submission of, any takeover proposal or (ii) participate
in any discussions or negotiations regarding, or furnish to any person
any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any takeover proposal. Without
limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by an investment
banker, attorney or other adviser or representative of the Stockholder,
whether or not such person is purporting to act on behalf of the
Stockholder or otherwise, shall be deemed to be in violation of this
Section 3(b) by the Stockholder. For all purposes hereof, "takeover
proposal" means any proposal for a merger or other business combination
involving Company or any of its subsidiaries or any proposal or offer to
acquire in any manner, directly or indirectly, an equity interest in any
voting securities of, or a substantial portion of the assets of Company
or any of its subsidiaries, other than the Merger and the other
transactions contemplated by the Merger Agreement. Notwithstanding the
foregoing, no Stockholder who is or becomes (during the term hereof) a
director or officer of Company makes any agreement or understanding
herein in his or her capacity as such director or officer, and nothing
herein will limit or affect, or give rise to any liability to
Stockholder by virtue of, any actions taken by Stockholder in his or her
capacity as an officer or director of Company in exercising its rights
under the Merger Agreement.
(c) The Stockholder shall not (i) transfer (which term shall
include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge or other disposition), or consent to any transfer of,
any or all of the Stockholder's Shares or any interest therein, except
pursuant to the Merger; (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of
such Shares or any interest therein, (iii) grant any proxy, power of
attorney or other authorization in or with respect to such Shares,
except for this Agreement, or (iv) deposit such Shares into a voting
trust or enter into a voting agreement or arrangement with respect to
such Shares; provided, that the Stockholder may transfer (as defined
above) any of the Stockholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable
institution which prior to the Stockholders' Meeting and prior to such
transfer becomes, a party to this Agreement bound by all the obligations
of the "Stockholder" hereunder.
(d) The Stockholder further agrees that the Stockholder will not
sell, pledge, transfer, or otherwise dispose of his interests in, or
engage in any hedging transactions
-3-
<PAGE> 4
relative to, (each a "Transfer") any shares of Parent Common Stock to be
received by the Stockholder pursuant to the Merger ("Stockholder's
Parent Shares") except as follows:
(i) an aggregate of 25% of the Stockholder's Parent Shares may be
Transferred at any time from and after the date on which the
Merger becomes effective (the "Effective Date");
(ii) an additional 25% of the Stockholder's Parent Shares, for an
aggregate of 50% of the Stockholder's Parent Shares, may be
Transferred at any time from and after the date that is 60 days
after the Effective Date;
(iii) an additional 25% of the Stockholder's Parent Shares, for an
aggregate of 75% of the Stockholder's Parent Shares, may be
Transferred at any time from and after the date that is 90 days
after the Effective Date; and
(iv) an additional 25% of the Stockholder's Parent Shares, or all of
the Stockholder's Parent Shares, may be Transferred at any time
from and after the date that is 120 days after the Effective
Date.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and appoints,
Parent and Sub, and each of them individually, the Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of the Stockholder, to vote the Stockholder's Shares at any meeting of
stockholders of Company (i) in favor of the Merger, the execution and delivery
of the Merger Agreement and approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided that the terms of
the Merger Agreement shall not have been amended to reduce the consideration
payable in the Merger to a lesser amount of Parent Common Stock, and (ii)
against any Competing Transaction.
(b) The Stockholder represents that any proxies heretofore given
in respect of the Stockholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
5. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or
-4-
<PAGE> 5
otherwise, including without limitation the Stockholder's successors or assigns.
The Stockholder agrees that, in the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of Company affecting the Company Stock, or the acquisition of
additional shares of Company Stock or other voting securities of Company by the
Stockholder, the number of Shares subject to the terms of this Agreement shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
apply to any additional shares of Company Stock or other voting securities of
Company issued to or acquired by the Stockholder.
6. Further Assurances; Stop Transfer; Legends.
(a) The Stockholder shall, upon request and expense of Parent,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Parent to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Stockholder's Shares as
contemplated by Section 4 in Parent.
(b) The Stockholder understands and agrees that stop transfer
instructions will be given to the transfer agent for the Company Capital Stock
with respect to shares of the Company Capital Stock now owned or hereafter
acquired by the Stockholder and that there will be placed on the certificates
representing such shares of Company Capital Stock, and any shares issued in
substitution thereof, a legend stating in substance as follows:
"These shares may be transferred only in accordance with the terms of a
Stockholder Voting Agreement between the original holder of such shares
and Akamai Technologies, Inc., a copy of which agreement is on file at
the principal offices of InterVU Inc."
(c) The Stockholder understands and agrees that stop transfer
instructions will be given to the transfer agent for the Parent Common Stock
with respect to shares of the Parent Common Stock issued to Stockholder pursuant
to the Merger and that there will be placed on the certificates representing
such shares of Parent Common Stock, and any shares issued in substitution
thereof, a legend stating in substance as follows:
"These shares may be transferred only in accordance with the terms of a
Stockholder Voting Agreement between the original holder of such shares
and Akamai Technologies, Inc., a copy of which agreement is on file at
the principal offices of InterVU Inc."
7. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (i) the Effective
Time of the Merger or (ii) the date upon which the Merger Agreement is
terminated in accordance with its terms; provided, that the provisions of
Sections 3(d) and 6(c) shall remain in full force and effect from and after the
Effective Time of the Merger for the period provided in Section 3(d). Upon such
termination, no party shall have any further obligations or liabilities
hereunder, provided that no such termination shall relieve any party from
liability for any breach of this Agreement prior to such termination.
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<PAGE> 6
8. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice): (i) if to Parent, to the
address provided in the Merger Agreement; and (ii) if to the Stockholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts,
all of which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties. Any assignment in violation of the foregoing shall
be void.
(h) The Stockholder agrees that irreparable damage would occur
and that Parent would not have any adequate remedy at law in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Parent
shall be entitled to an injunction or injunctions to prevent breaches by the
Stockholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
(i) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
-6-
<PAGE> 7
(j) Nothing contained in this Agreement shall be deemed to vest
in Parent or Sub any direct or indirect ownership or incidence of ownership of
or with respect to any of the Stockholder's Shares. All rights, ownership and
economic benefits of and relating to the Stockholder's Shares shall remain and
belong to the Stockholder, and neither Parent nor Sub shall have any authority
to manage, direct, superintend, restrict, regulate, govern, or administer any of
the policies or operations of Company or exercise any power or authority to
direct the Stockholder in the voting of any of the Stockholder's Shares, except
as otherwise provided herein, or the performance of Stockholder's duties or
responsibilities as a stockholder of Company.
-7-
<PAGE> 8
(k) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Stockholders Agreement as of the day and year first above written.
AKAMAI Technologies, Inc.
By:
------------------------------------
President
STOCKHOLDER:
------------------------------------
Name:
--------------------------------
Address:
-----------------------------
-----------------------------
Number of Shares
of Company Stock
Beneficially Owned:
------------------
-8-
<PAGE> 1
Exhibit 99.1
[LETTERHEAD]
AKAMAI TO ACQUIRE INTERVU TO FORM LARGEST
INTERNET STREAMING MEDIA AND BROADBAND
CONTENT DELIVERY COMPANY
$2.8 BILLION ACQUISITION TO CREATE INDUSTRY LEADER WITH
OVER 1,000 CUSTOMERS
CAMBRIDGE, MA and SAN DIEGO, CA, February 7, 2000 -- Akamai Technologies
(NASDAQ: AKAM), the foremost provider of global, high performance services for
the delivery of Internet content, streaming media, and applications, and INTERVU
Inc. (NASDAQ: ITVU), the leading service provider for Internet audio and video
delivery solutions, announced today that they have signed a definitive agreement
for Akamai to acquire INTERVU in a stock-for-stock transaction valued at
approximately $2.8 billion. Each share of INTERVU common stock will be exchanged
for 0.5957 shares of Akamai common stock. Upon closing, this acquisition will
make Akamai the largest global provider of Internet content, audio and video
delivery services.
Akamai, the exclusive network provider for Apple QuickTime TV, will combine its
global network with that of INTERVU, a pioneer in the quickly expanding
streaming market. Together, the two companies will support all leading streaming
media formats, and will have over 1,000 customers, including AOL MovieFone,
Apple, CBS Corporation, CNN, General Motors, GO Network, IBM, Microsoft, NBC,
Paramount Digital Entertainment, Quokka Sports, Turner Broadcasting, Universal
Studios, and Viacom.
The companies will jointly have more than 3,000 servers in 100 networks across
40 countries, expanding upon what was already the largest fault-tolerant network
for the delivery of streaming media. The company's headquarters will remain in
Cambridge, MA, and will include offices in Atlanta, Chicago, Cupertino, London,
Los Angeles, Munich, New York, Paris, San Diego, San Mateo, Seattle, and the
Washington D.C. area.
"By combining with INTERVU we will create the hands down leader in the field of
Internet streaming," said George Conrades, chairman and CEO of Akamai.
"INTERVU's powerful customer base and proven track record, together with
Akamai's innovative technology and global network, is a winning and
complementary combination. This merger will solidify Akamai's position in the
streaming arena and will provide customers with the most comprehensive,
end-to-end content delivery solution in the market today. Following our recent
<PAGE> 2
acquisition of Network24, our agreement with INTERVU will ensure that Akamai
will play the leading role in defining the future direction for streaming
content over the Web."
"By joining forces with an organization of Akamai's caliber, we can truly
empower our customers with the broadest range of content delivery solutions
available. Our combined company will be poised to become the de facto standard
for integrated media delivery services," according to Harry Gruber, founder and
CEO of INTERVU. "We are confident that together we will introduce a new
generation of streaming, including enhanced performance and reliability, to the
Web's top properties."
By acquiring INTERVU, Akamai believes it will be best positioned in the market
to offer:
- Integrated Applications -- meeting customer demand for solutions
that combine the delivery of streaming media with dynamic and
personalized content, and enable an interactive broadband media
experience over a high-performance delivery network.
- Broadest Network Reach -- integrating INTERVU's network of
regional staging hubs for audio and video with Akamai's global,
edge delivery network, the combined companies will create a
single, massive platform that incorporates broadband networks and
satellite distribution, for the delivery of high quality streaming
media.
- Proven Expertise -- deploying the most experienced team in the
industry, including hundreds of employees who are focused on
providing world-class streaming services.
- Comprehensive Solution -- offering broadest range of end-to-end
streaming media solutions, including signal acquisition,
production, encoding and delivery as well as value added services
from applications such as the Network24 Qcast offering from Akamai
and Netpodium from INTERVU.
Under terms of the agreement, Akamai will acquire INTERVU by issuing
approximately 9.3 million shares of Akamai common stock in exchange for all
outstanding shares of INTERVU stock. Additionally, Akamai will convert
outstanding INTERVU stock options and warrants into approximately 2.8 million
Akamai options and warrants. The merger will be effected on a tax-free basis to
INTERVU stockholders and will be accounted for as a purchase. The acquisition is
subject to certain closing conditions, including regulatory approvals and the
approval of INTERVU stockholders, and is expected to close during the second
quarter of 2000.
About INTERVU Inc.
INTERVU provides Web site owners and content publishers with services for the
delivery or "streaming" of live and on-demand video and audio content over the
Internet. INTERVU's services automate the publishing, distribution and
programming of video and audio content. INTERVU's customers use its video and
audio distribution services to transmit entertainment, sports, news,
advertising, business communications, and distance learning content. INTERVU's
current customers include CNET, CNN, Excite@Home, House of Blues, Investor
Broadcast
<PAGE> 3
Network (formerly Vcall), Microsoft, MSNBC, NBC, NetRadio.com, Quokka Sports,
Saatchi & Saatchi, Tunes.com and Turner Broadcasting. Additional information can
be found at www.intervu.net.
About Akamai
Akamai Technologies, Inc. is headquartered in Cambridge, Massachusetts, and has
offices in Cupertino and San Mateo, California; and Munich, Germany; Paris,
France; and London, England. Akamai provides global Internet content, streaming
media, and applications delivery services for hundreds of customers, improving
Web site speed and reliability and enabling richer, more engaging Web site
content. To date, Akamai has delivered millions of high-quality audio and video
streams. Currently, Akamai has deployed over 2,000 servers in excess of 40
countries across more than 100 different telecommunications networks. Akamai
(pronounced AH kuh my) is Hawaiian for intelligent, clever and cool. Additional
information can be found at www.akamai.com.
# # #
Except for the historical information contained herein, this news release
contains forward-looking statements that are subject to risks and uncertainties
that might cause actual results to differ from those foreseen, including the
market acceptance for INTERVU's specialized services, technological change and
intense competition, as well as the other risks detailed from time to time in
INTERVU's SEC reports, including the report on Form 10-K filed on March 30,
1999.
The release contains information about future expectations, plans and prospects
of Akamai's management that constitute forward-looking statements for purposes
of the safe harbor provisions under The Private Securities Litigation Reform Act
of 1995. Actual results may differ materially from those indicated by these
forward-looking statements as a result of various important factors including,
but not limited to, the dependence on Akamai's Internet content delivery
service, a failure of its network infrastructure, the complexity of its service
and the networks on which the service is deployed, the failure to obtain access
to transmission capacity and other factors that are discussed in the Company's
Registration Statement on Form S-1 and other documents periodically filed with
the SEC.
